Insights | Kobre & Kim — Disputes and Investigations

In light of the ongoing PRC-U.S. trade dispute, Chinese companies are more likely to face charges in U.S. courts against civil claims of trade secret theft.
Civil trade secret misappropriation cases in U.S. courts can be particularly complex and high-stakes for Chinese companies on the defensive end of cross-border disputes.
Chinese companies, their executives and legal representatives should familiarize themselves with U.S. IP protection standards in the face of pending cross-border litigation.

For those considering investing in projects tied to China’s Belt and Road Initiative (BRI), corruption and bribery are major areas of concern.
In the event of fraud or misconduct allegations, parties and their counsel will need to understand and anticipate how global anti-corruption enforcers might approach such investigations.
Carrying out a series of “stress tests” or appointing an independent third-party examiner are two examples of proactive measures companies can take to mitigate the risk of being on the wrong end of an anti-corruption investigation.

Chinese businesses tend to favor offshore jurisdictions for setting up joint venture (JV) structures, but deadlock can ensue if partners differ into a dispute.
A litany of offshore legal tools exists, from provisions in the JV's constitutional documents to the appoint of a receiver to restore control to the wronged party.
However, the process for deploying these options differ based on each jurisdiction, and it is advisable to seek counsel before acting on any strategy.

International creditors continue to face significant challenges when monetizing claims against debtors based in the People's Republic of China.
Actions such as a standalone freezing injunction can be used in English common law jurisdictions to freeze assets that are held by innocent third parties.
Injunctions and receiverships can be made without giving notice to the debtor, bestowing the "element of surprise."

For international creditors, monetizing claims against debtors located in the People’s Republic of China has proven difficult.
The first challenge is finding where the assets are, specifically via offshore discovery.
Time is of the essence, and “freezing” the money is next.

Rising cyber security breaches place global companies at risk.
The New York State Department of Financial Services (NYDFS) recently imposed new regulations requiring companies to certify compliance with their cybersecurity programs by February 15 of every year.
To prevent a breach, noncompliance or litigation, Chinese companies with U.S.-incorporated subsidies ought to ensure their programs comply with these new regulations.

The U.S. government has made its intentions clear that it will investigate and prosecute PRC-based companies and individuals that it believes employ illegal tactics to compete with U.S. companies in key sectors.
Future U.S. actions could come from any number of directions.
Whatever action comes next, a cross-border perspective and willingness to represent PRC-side clients against the U.S. government will be essential to an effective response.

In recent history, investments originating from China have accounted for nearly a quarter of CFIUS reviews, with investments from the UK, Japan, Hong Kong, Israel and South Korea also among the most reviewed.
The U.S. has indicated it intends to more aggressively review and regulate foreign investment in industries that may implicate national security via the Committee on Foreign Investment in the United States (CFIUS), an interagency committee headed by the U.S. Department of Treasury.
While CFIUS is largely a voluntary regime, it is important for foreign investors to consider the potential implications of an investment in, or the purchase of, a U.S. company.