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Griffith Business alumnus becomes Trade & Investment commissioner

Griffith Business School alumnus Julie-Anne Nichols has been announced as Queensland’s new Trade and Investment Commissioner for China.

Premier Annastacia Palaszczuk said Ms Nichols, who holds a Bachelor of International Business and a Graduate Diploma in Mandarin Chinese Language from the University, has exceptional experience as a leader and stakeholder liaison with the Asian business landscape that will serve her well in the key role.

“Ms Nichols has been the Queensland Trade and Investment Commissioner in Hong Kong since February 2017 and was previously the Senior Trade Commissioner for Austrade in Guangzhou and in Singapore, so her experience across Asia is outstanding,” Ms Palaszczuk said.

“She is well placed to represent Queensland’s interests in trade and investment across all industries and has an extensive knowledge of the Chinese market.”

Acting Pro Vice Chancellor (Business) Professor Fabrizio Carmignani congratulated Ms Nichols on her appointment, which will see her work to improve trade and investment ties between Queensland and China.

“We are proud to hear that one of our remarkable Griffith Business School alumni has climbed to such tremendous heights in the international trade and investment sector,” Professor Carmignani said.

“As a university with historically strong ties to the Asia region, it is deeply rewarding to see Julie-Anne living the Griffith value of engaging with our northern neighbours to achieve meaningful outcomes and impacts for the state of Queensland at large.

“We wish Julie-Anne all the best in her new and exciting role, and will be watching eagerly as she continues to move from strength to strength in her career.”

Ms Nichols has been a resident of China for a decade, during which time she has overseen several teams working across eastern China and north-east Asia.

One of her first duties, according to the state government, will be to oversee the 30th anniversary of the Queensland Government Sister-State Agreement with Shanghai Municipal Government, being commemorated this year.

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Staying in the technology race, avoiding protectionist pitfalls

It is vital for law firms and in house counsel that they are at the forefront when advising on the specifics and legalities of the technology supply chain, which increasingly relies on mining raw materials for use within the manufacturing process of ‘smart’ products. However, an acute awareness of the barriers is also essential.

As such, Gowling WLG’s Protectionism 2.0 Report highlights how protectionist domestic policies from country to country can stifle the commercial overseas collaboration opportunities that technology offers.

Given the increase in protectionist policies, and the inherent link that exists between these and mining essential raw materials, it has never been more important that in house teams work closely with their advisers to anticipate market changes and implement strategies to manoeuvre through what can be difficult events and circumstances.

What is becoming evident, as set out in the report, is that there is a startling correlation between countries that pursue digitally protectionist policies (laws that prevent the overseas collaboration that is needed for technology to properly develop) as well those that are protectionist in relation to their natural resources – in particular China, Russia, India, Vietnam, Argentina and Turkey – six key global players in both areas of the economy. Given that countries like these are the very same which house the essential raw materials that need to be mined to fuel the development of technology, it is crucial to understand how to anticipate the impact of such behaviour on the technology supply chain.

General Counsel could be forgiven for focusing more on the operational and trading aspects relating to the existing uncertainty surrounding Brexit and global trade – and simply seeing digital protectionism as a side-line issue to focus on at a later date. This would be a mistake, given that these measures pose as much a threat to international trade and development as the more traditional tools of trade protectionism that seem to be most in focus at present.

Not only do the identified countries above have a strong track record in imposing trade barriers and tariffs on imports, they also have a high number of restrictive data laws and large deposits of the vital raw materials needed to make smartphones, connected devices and batteries for electric vehicles.

While this is happening in real time, many technology focused brands – focused on the manufacturing side of the industry – may not yet have anticipated how this will affect their sourcing and subsequent supply chain partners and processes. This makes it even more important that General Counsel communicate the effect of this on the output of their businesses in order to assist internal relationships or indeed, using the foresight of their selected legal advisers.

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Patent law developments in China

From last year, with the improvement of China’s industrial technological level, as well as tremendous changes in the international competitive environment, China’s patent protection system and patent protection practices were also changed and adapted to the same. With an imminent drug patent link system, patent application ability is being continuously improved, the patent judicial protection system is being further perfected, the amount of infringement compensation has obviously risen, and the punitive damage standard of deliberate infringement is being strongly supported.

The number of patent litigation cases has increased significantly. In 2017, Chinese courts received 213,480 first-instance intellectual property (IP) cases and closed 202,970 cases in total, a rise of 46.04% and 43.13%, respectively from 2016, in which 16,044 cases related to patent rights. In the same period, the IP courts in Beijing, Shanghai and Guangzhou accepted a total of 26,698 IP rights (IPR) cases in the first and second instances, and concluded 22,631 cases. Beijing Intellectual Property Court accepted 1,161 patent administrative litigation cases, an increase of 5.2% on the same period the previous year, and closed 753 cases, an increase of 27.2% on the previous year.

With a tremendous scale in creation and application of various types of IPR, and enhanced values of some IPR, there are IP disputes that are prone to occur frequently, while the supply side of non-litigation dispute resolution mechanisms is insufficient, so that the rigid demand for judicial protection is continuously on the rise.

The IP tribunals have been successively founded to make the patent judicial trials more specialized. After the Supreme People’s Court (SPC) summarized and promoted the practical experience of IP courts in Beijing, Shanghai and Guangzhou last year, the establishment of IP-specialized trial tribunals was approved for cross-regional jurisdiction in 11 cities including Nanjing, Suzhou, Wuhan, Chengdu, Hangzhou, Ningbo, Hefei, Fuzhou, Jinan, Qingdao and Shenzhen to enhance the unification of standards, scales and quality of verdict, and provide better verdict guidelines for the creation and application of IP.

The technical investigator system has been introduced in patent litigation to make patent infringement litigation trials more specialized. In patent case trials, the court often needs to identify a number of technical facts, and conduct in-depth research and comparison of technical solutions. Overcoming complex technical obstacles in the identification of facts is a key point that has long affected enhancement of the quality and efficiency of trials.

In response to this problem, Chinese courts explored establishing a system where technical investigators neutrally perform duties to assist in the trial, and appointed a number of technical investigators from multiple channels such as enterprises and institutions, universities, scientific research institutions, national patent agencies, and patent agent associations. Thus, the “four-in-one” mechanism was jointly participated in by professional people’s jurors, technical investigators and expert assistants, and judicial appraisal agencies for identifying technical facts were constructed to assist judges in cracking technical doubts and clearing technical obstacles to an impartial trial.

The patent link system has been established in view of the fact that patent infringement litigations taking place during the listing approvals of drugs will have certain impact on the approval of generic drugs. In view of the fact that drugs in the process of listing approval may not be examined for patent infringement, drug research enterprises have to resort to legal means to restrain infringements after the listing of drugs by a competitor. However, restricted by the drawbacks of small infringement damage amounts and difficult enforcement under the current patent system in China, such right protections are usually almost in vain.

As stipulated in the Opinions on Deepening the Reform of the Review and Approval System to Encourage the Innovation of Drugs and Medical Instruments issued by the central government, in order to protect the legitimate rights and interests of patentees, reduce the patent infringement risks of generic drugs, and encourage the development of generic drugs, the establishment of a drug review and approval, and drug patent link system, was explored. When an applicant for drug registration submits an application for registration, the applicant must state the relevant patent involved as well as its ownership status, and notify the relevant drug patentee within the specified time limit.

Where there is a dispute over the patent right, the parties concerned may file a lawsuit with the court without aborting the technical review of the drugs during the period. For drugs that have passed technical review, the Food and Drug Supervision Department should make a decision on whether to approve the listing according to the court’s effective judgment, ruling or mediation.

If the effective judgment, ruling or mediation is not obtained within a certain time limit, the Food and Drug Supervision Department may approve the listing. According to the above-mentioned provisions, after the receipt of the notification from the drug listing applicant, the relevant drug patentee who believes that its patent right has been infringed may bring a patent infringement lawsuit to the judicial authority, which to a large extent discourages the generic drug manufacturer to employ the “Bolar case exception” to apply for drug listing before the drug administration department. The establishment and improvement of the drug patent link system may also significantly reduce the time for the drug patent expiration and the drug listing in the near future.

The patent infringement compensation system has been further perfected, which greatly enhances compensation amounts. There are always problems such as difficult investigations and evidence collection, and low amounts of compensation in patent infringement. According to the current patent law, the compensation first follows the “bridge principle”, which is to bridge all the losses of the patentee, and is not punitive to the infringer.

The revised patent law is expected to stipulate that, where the patent right is intentionally infringed, the court may raise the amount of compensation to a maximum of three times, according to the circumstances, scale and damage incurred. As long as the patentee can prove that the competitor is present with intentional infringement (for example the competitor has infringed once and lost the case), a punitive damage judgment may be made against the infringer.

The people’s court may determine the amount of compensation to be more than double and less than three times, based on the above-mentioned method, according to the circumstances, scale and damages incurred from the infringement.

The amount of compensation should also include the reasonable expenses of the rights holder incurred for stopping the infringing act. The amount of compensation should also include reasonable expenses paid by the rights holder to restrain the infringement act.

The Patent Infringement Guidelines (2017), issued by Beijing Higher People’s Court, combine practical needs with the idea of punitive damages for “malicious infringement” behaviour.

The guidelines set out that, where it pertains to malicious infringement, it is possible to support the plaintiff’s appeal within the statutory compensation limit, or determine the amount of compensation at a higher level.

In the judicial practice of patent infringement litigation, compensation for damages to the patentee has increased substantially. For example, in the case of Beijing Watchdata System Company v Hengbao Co Ltd for the infringement of patent rights, Beijing Intellectual Property Court judged that the defendant be compensated for economic losses of RMB49 million (US$7.1 million) and legal fees of RMB1 million, which is the highest amount of damages ever judged since the establishment of the court, and for the first time explicitly supports the time charges of an attorney in the judgment.

Also, in the case of LG v NEC Corporation for the patent for invention titled “Spindle Motor”, Beijing Intellectual Property Court supported the right holder’s compensation request and reasonable expenditure of nearly RMB4 million. In Qingdao, CO-NELE’s case for the patent for a utility model titled “high-efficiency transmission device for planetary stirrer”, supported the rights holder’s compensation request and reasonable expenditure of RMB3.6 million.

In the application of statutory compensation cases, a discretionary compensation mechanism that conforms to the law of the market and meets the requirements for protection of patent rights has been gradually established, so that the amount of compensation for damages matches the market value of the patent right, so as to adapt to the contribution rate of the patent right to the profit of the infringement behaviour.

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China hits back at Trump with tariffs on $60 billion of US goods

China is to slap tariffs on an additional $60bn (£46bn) of imports from the United States in retaliation against $200bn of new trade sanctions on Chinese goods announced by Donald Trump.

The latest moves represent a new step towards a full-scale trade war between the world’s two biggest economies. Further escalation is deemed likely because President Trump is facing low approval ratings ahead of the United States midterm elections in November, while China will not want to be seen to back down.

President Trump announced his latest escalation of the bitter trade standoff late on Monday, promising to introduce the additional border taxes of 10% on Chinese goods from next week.

The tariffs – designed to make United States domestic products more competitive against foreign imports – apply to almost 6,000 items, including consumer goods such as luggage and electronics, housewares and food.

The United States president threatened further tariffs on an additional $276bn of goods if Beijing unveils retaliatory measures – a step that would mean tariffs on all Chinese imports to the United States and equate to 4% of world trade.

Early on Tuesday he tweeted to accuse China of “actively trying to impact and change our election by attacking our farmers, ranchers and industrial workers because of their loyalty to me”.

The United States president added: “What China does not understand is that these people are great patriots and fully understand that China has been taking advantage of the United States on trade for many years.

“They also know that I am the one that knows how to stop it. There will be great and fast economic retaliation against China if our farmers, ranchers and/or industrial workers are targeted!”

However, China then unveiled $60bn of tariffs on US imports including aircraft and coffee.

Ahead of China’s latest move, Jack Ma, the founder of e-commerce giant Alibaba and one of the country’s wealthiest men, warned the conflict could drag on for 20 years and would be a “mess” for all parties.

China faces difficulty in responding on a scale equal to President Trump’s new tariffs because its annual imports from the United States total only about $130bn, while its exports to the United States total more than $500bn.

However, analysts said the Chinese government had a comprehensive toolbox of alternative measures it could deploy to disrupt United States businesses operating in China – and might even devalue its currency to offset the impact of the tariffs.

Erik Britton of research firm Fathom Consulting said he believed China was eventually likely to capitulate and would enter fresh talks to end the threat of tariffs as a result of the trade imbalance.

“Our likeliest outcome is that China yields. They’ve been in a game of chicken – only the United States is driving a 40-tonne truck and China is driving a Fiat Cinquecento.”

Britton added that President Trump was probably using the threat of tariffs to force Beijing to change its economic policies covering United States companies.

“The point is they [the United States] want something to change,” he said. “When I threaten my kids with stopping their pocket money it’s not that I want to raise money. It’s that I want them to tidy their room.”

President Trump has argued Beijing uses “unfair” trade practices such as forcing the transfer of United States firms’ intellectual property when they operate in China. Some analysts, however, said the threat of tariffs could exacerbate these actions, rather than end them.

David Chmiel, the managing director of risk consultancy Global Torchlight, said: “There could be a weaponising of regulation by Beijing. You can see a situation where they target specific United States companies.”

Economists said this could have a significant impact as many United States companies – including Nike, General Electric and Apple – have operations in China. Disruption could range from invasive health and safety checks to tougher labour controls or rules on fire standards. Mergers and acquisitions could be made more difficult, and state contracts could be withheld from United States firms.

Keith Wade, the chief economist at Schroders, said: “Very zealous enforcement of regulations could make life quite difficult for companies. America is also probably more dependent on China than the official trade figures suggest.”

United States Census Bureau figures show China sells about $375bn more to the United States than goes the other way. However, Deutsche Bank reckons taking into account direct in-country sales by United States firms in China would give a $20bn surplus in favour of the United States.

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Theresa May pledges Africa investment boost after Brexit

In a speech in Cape Town, Theresa May pledged £4bn in support for African economies, to create jobs for young people.

She also pledged a “fundamental shift” in aid spending to focus on long-term economic and security challenges rather than short-term poverty reduction.

She will also visit Nigeria and Kenya during the three-day trade mission.

On her way to South Africa, the prime minister played down warnings from the chancellor about the economic damage a no-deal Brexit could cause.

Talking to journalists on board RAF Voyager on Tuesday morning, Mrs May reiterated that she believed a no-deal Brexit was still better than a bad deal – adding no-deal “wouldn’t be the end of the world”.

Last week Chancellor Philip Hammond warned in a letter that a no-deal Brexit could damage the economy.

Mrs May’s trip – which will see her meet the presidents of all three countries – aims to deepen economic and trade ties with growing African economies ahead of Britain leaving the EU in 2019.

Arriving in South Africa on Tuesday morning, Mrs May said she wanted the UK to overtake the US to become the G7’s biggest investor in Africa by 2022.

She promised to continue existing economic links based on the UK’s EU membership – including an EU-wide partnership with the Southern African Customs Union and Mozambique – after Brexit next year.

Promising an extra £4bn in direct UK government investment – which she expects to be matched by the private sector – she said while the UK could not match the “economic might” of some foreign investors – such as China or the US – it offered long-term opportunities of the “highest quality and breadth”.

She defended the UK’s aid spending in Africa, a target of criticism from some Tory MPs, saying it had “worked” to give millions of children and women an education and immunise millions against deadly diseases.

But she said she was “unashamed” that it had to work in the UK’s own interest and pledged a new approach in future, focusing on helping British private sector companies invest in fast-growing countries like Cote D’Ivoire and Senegal while “bolstering states under threat” from Islamist extremism such as Chad, Mali and Niger.

“True partnerships are not about one party doing unto another, but states, governments, businesses and individuals working together in a responsible way to achieve common goals,” she said.

The UK’s overseas aid budget totalled £13.9bn in 2017, an increase of £555m in 2016.

UK direct investment in Africa was £42.7bn in 2016, compared with £44.3bn from the US, £38bn from France and £31bn from China, according to data from the United Nations Conference on Trade and Development.

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Finalists announced for the China Law & Practice Awards

Herbert Smith Freehills, Freshfields Bruckhaus Deringer, and Skadden, Arps, Slate, Meagher & Flom are among the firms nominated for International Law Firm of the Year at the China Law & Practice Awards.

Vying for the showcase category for indigenous Chinese players are firms that include King & Wood Mallesons, Fangda Partners, JunHe, and Han Kun Law Offices.

China Law & Practice is set to host the awards in association with sister publications The Asian Lawyer, The American Lawyer and Legal Week on Sept. 13 at The St. Regis hotel in Beijing.

The awards recognize top matters inside and outside China, and best-performing law firms and standout partners. The September ceremony will also honour initiatives in pro bono work, technology innovation and an in-house team of the year.

Shortlisted deals feature some of the largest and most high-profile transactions in China. Video streaming site iQiyi’s $2.25 billion Nasdaq listing and iPhone manufacturer Foxconn’s A-share listing are among deals competing for equity securities deal of the year. Alibaba’s acquisitions of Sun Art Retail and meal delivery app Ele.me are both nominated for the M&A category.

Fangda, JunHe, Han Kun and Tian Yuan are competing for Capital Markets Firm of the Year as well as M&A Firm of the Year in the domestic categories, while Davis Polk & Wardwell and Skadden are vying in both categories for global firms.

Last year’s big winners included JunHe and Clifford Chance, which took home China and International Firm of the Year, respectively; King & Wood Mallesons was named Most Innovative Firm.