We highlight the practical elements for enterprises to note when implementing the resumption of work.

1. Closed-loop management

Enterprise should implement a closed-loop pandemic control mechanism that is acknowledged by the authorities. Namely, a closed-loop refers to area zoning and category-based management for different areas to prevent physical contact between different groups of employees such as in production, common areas, or meeting rooms, as well as establishing no-contact with external individuals such as logistic suppliers (external individuals must hold a negative nucleic acid test certificate within 48 hours and on-site negative antigen test results). As result, employers should ensure the employees are segregated into groups, establish the work environment to permit one metre social distancing within the workplace, and restrict or limit physical contact between such groups to isolate positive cases to one group and prevent cluster outbreaks.

2. Emergency response plan

Enterprises shall formulate emergency response plans for COVID-19 outbreaks in the workplace. Any employees with abnormal antigen detection and nucleic acid detection should be reported to the official in charge and the Centre for Disease Control and Prevention. Transportation and treatment of those diagnosed with COVID-19 should be priorly established with the local government and temporary isolation measures should be implemented for close-contact staff. Large enterprise shall set up a shelter in the factory area.

3. Stock of Anti-Pandemic Materials

Enterprises should maintain a stock of anti-pandemic materials and purchase antigen self-test kits, face masks, alcohol-based disinfectants, hand sanitizers, infrared thermo-detectors, thermal imaging detectors, protective suits, goggles, disposable gloves, etc. whenever necessary. A minimum supply of anti-pandemic materials for 14 days is recommended. All used protective items shall be disposed properly and safely.

The Guideline also adds that enterprises should resume work and production under the guidance of district governments on a “one-on-one” basis. We suggest that enterprises consult with professionals to ensure the resumption of work is compliant with the local guidelines and district government.

This content appears as a courtesy of Horizons Corporate Advisory, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.horizons-advisory.com. 

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DPB-the highlights

As stated, the DPB comprehensively incorporates most of the governing norms on data protection.

Comprehensive Incorporation of Core Principles on Data Protection

There are several internationally recognised core norms for data protection. These include Fair and lawful processing of personal information, Purpose specification, Minimality, quality, Openness and transparency, Data subject participation, Sensitivity, Security and confidentiality and Accountability.[1]

The DPB mandates data controllers to process information fairly, in a transparent manner and subject to the data subject giving consent.[2] This suffices as lawful processing of personal data under the DPB. Section 19 of the DPB also requires specific treatment for sensitive personal data. The DPB requires purpose specification for the processing of personal data, minimality, quality.[3] Data subject participation is guaranteed under part IV of the DPB which outlines the rights of a data subject. Data security is comprehensively regulated under Part V of the DPB. In all this, it is easy to appreciate how comprehensive the DPB is in embracing the international norms and standard on data protection.

Cross-Border Transfers of Personal Data

The DPB adopts a comprehensive framework for cross-border transfer of personal data.[4] This is a great step towards ensuring data protection in cross-border online transactions. This is because the DPB effectively provides a platform against which cross-border flows of personal data can be regulated. This can be sharply contrasted from the old Electronic Transactions and Cyber Security Act, which did not contain any provisions regulating cross-border flows of personal data in electronic transactions.

The DPB can be commended on many fronts including the condition of making data flows primarily subject to a decision on the adequacy of data protection in the foreign country to which the data will be transferred. [5]  The DPB is progressive in that data transfers can be authorised where the foreign country has a law, binding corporate rules, contractual clauses, code of conduct, or certification mechanism that afford an adequate level of protection.[6] This list is exhaustive enough to ensure sufficient facilitation of cross-border flows. In the absence of an adequate level of protection of any of the foregoing, a data transfer can be authorised under these conditions: if the data subject gives consent; if the processing is necessary for performance or conclusion of contract involving the data subject; and where consent cannot be practicably given, the transfer is nevertheless in the best interest of the data subject and the data subject would not have objected to it had he been asked.[7] These exceptions are broad enough to ensure the pace of international transactions is not unnecessarily hindered.

Data Protection by Design and Default

The DPB is also very progressive in that it accords the Authority with the power to publish directions on good practices and codes of conduct in data protection including the application of data protection principles by design and default in the processing of personal data.[8] Data protection by design is a concept that dictates that in light of progressive data protection regimes, companies must ensure that in their activities they incorporate data protection. Essentially since the companies must comply with data protection they must not wait for breaches before they address data protection but rather from the commencement of any action or process data protection must be incorporate and addressed.

On the other hand, data protection by default entails that for those computer products already released, there must be adherence to the highest standard of privacy to ensure data is kept safe and secure. Further, any data necessary for the operation of the product should only be kept for the minimum possible amount of time. The incorporation of these concepts in the DPB is a remarkable step in ensuring that privacy will be respected as technology gets more sophisticated.

The DPB clearly updates the data protection landscape in Malawi to comparable international standards.  This is indeed a shift in the right direction and will ensure that Malawi takes part in the information age. In my next article I shall explore some of the weaknesses in the DPB that may yet be improved to ensure comprehensive legislation is enacted.

Author: Gonjetso Dikiya LLB(Hons) University of Malawi; LLM candidate in Information and Communications Law, University of the Witwatersrand.

Head of Legal Services- Dispute Settlement Services

This content appears as a courtesy of Ritz Attorneys at Law, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit https://ritzattorneys.com/.

[1] Roos Anneliese ‘Core Principles of Data Protection’ 2006 CILSA 102-130.

[2] S. 18 of the DPB

[3] S. 23 of the DPB.

[4] Part VI of the DPB.

[5] S. 34(1)(a) of the DPB.

[6] S. 34(1)(a) of the DPB.

[7] S 36 of the DPB.

[8] S. 13 of the DPB

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The protection of consumer welfare is one of the objectives of the Competition and Fair-Trading Act (CFTA). Although the protection of consumers is largely governed by the Consumer Protection Act, the competition regime also has a role to play because competition and consumer protection are essentially two sides of the same coin. This paper discusses the link between competition and consumer protection, and the role of the Competition and Fair-Trading Commission (CTFC) in the protection of consumers.

The Link between Competition Law and Consumer Protection

There exists an undeniable link between competition and the protection of consumers from unfair trade practices. Anti-competitive behaviour e.g., price fixing and exclusionary practices, distort the market force of supply by restricting the entrants into the market. Where supply is low and demand is high, producers will most likely hike their prices. The obvious disadvantage of this on the consumer is clearly a concern of both competition and consumer protection regimes.

Concurrently, consumer protection offences, such as deceptive advertising, distort the market force of demand. They create a false image as to the true nature of a product or service, making it seem to be worth more than it actually is. Unfair trading practices not only affect the welfare of consumers, but also lessen the business of existent or potential trade rivals. Thus, in order to ensure that there is a free market, sufficient protection must be given to both the supply side and the demand side – to both competition and consumer protection regimes. While ensuring that the market force of supply is protected by safeguarding against anti-competitive behaviour, demand must also be protected by safeguarding consumers against unfair and deceptive trade practices, that make goods and services appear to be worth more than they actually are.

Prohibited Unfair Trading Acts Against Consumers

The Competition and Fair-Trading Act prohibits any unfair trading acts committed against consumers. The following practices by producers or traders constitute unfair practices towards consumers and are prohibited under the Competition and Fair-Trading Act:

• Withholding or destroying producer or consumer goods, rendering goods unserviceable or destroying the means of production and distribution of such goods, whether directly or indirectly, with the aim of bringing about a price increase;
• Excluding liability for defective goods;
• Making warranties that do any of the following;
• Limit liability to a particular geographic area or sales point;
• Falsely represent that products are of a particular style, model or origin;
• Falsely represent that the goods are new or of specified age;
• Represent that the products or services have any sponsorship, approval, performance and quality characteristics, components, materials, accessories, uses or benefits which they do not have;
• Engaging in conduct that is likely to mislead the public as to the nature, price, availability, characteristics, suitability for a given purpose, quantity or quality of any products or services;
• Supplying any product which is likely to cause injury to health or physical harm to consumers, when properly used, or which does not comply with a consumer safety standard which has been prescribed under any written law;
• Claiming payment for unsolicited goods or services;
• Engage in unconscionable conduct in carrying out trade in goods or services;
• Engage in pyramid selling of goods and services (a scheme which makes money by recruiting people rather than by selling products);
• Engaging in bait selling (A sales tactic where a store/trader attracts customers by an advertisement for a high quality or low-priced item, that turns out to be unavailable. The trader then uses the opportunity to lure the customer into purchasing a higher priced or lower quality product as a replacement, or to purchase other products offered by the same producer. The advertised unavailable product is only used as bait);
• Offering gifts or prizes with no intention of supplying them;
• Putting out an advertisement which is misleading or deceptive; and
• Engaging in any such acts constitutes an offence.

Role of the Competition and Fair-Trading Commission in Consumer Protection

The CFTC is empowered to enforce the CFTA and regulate, monitor, control and prevent acts or behaviour which are likely to adversely affect competition and fair trading in Malawi.  This includes conducting investigations, whether of its own motion or otherwise, into the conduct of any business to ensure that its acts are not anti-competitive or unfair towards consumers. The Commission sits as tribunal and may hold public hearings in the conduct of its investigations. It has authority to summon and examine witnesses, to call for and examine documents, to administer oaths, to require that any document submitted to the Commission be verified by affidavit; and to adjourn any investigation from time to time. Following such hearings, the Commission may make a finding based on which the Commission can make orders and directions.

Thus, where unfair acts have been committed against consumers, the consumer may report to the CFTC, which will then summon the concerned parties and conduct investigations in the manner discussed above. The Commission also has power to unilaterally commence investigations of suspected unfair practices against consumers, without being moved by anyone. Once the Commission makes a finding, it can issue order and directions regarding the conduct of the trader against consumers. It may require that traders cease certain unfair trade practices or even make payment to consumers for injustices committed against them. Further, the findings of the Commission may be used as a basis for prosecution of those who engage in unfair trading practices. Through this, the welfare of consumers is protected.

The safeguarding of fair competition and the protection of consumers from unfair trade practices are interlinked and indispensable to each other. They both protect the market forces of supply and demand, which are necessary to ensure free and fair trade, as well as efficiency of production and distribution of goods and services. The Competition and Fair-Trading Commission plays a key role in the protection of the welfare of consumers through its findings, orders and directives issued pursuant to its investigative powers.

This content appears as a courtesy of Ritz Attorneys at Law, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit https://ritzattorneys.com/.

The post Protection of Consumers under the Competition Law Regime in Malawi appeared first on China Collaborative Group.

Deng Xiaoping initiated the Reform and Opening Up policy and opened the door to the world in 1978. As a result, China’s GDP rose from 367.9 billion yuan in 1978 to 15.45 trillion yuan in 2020 and lifted China from a third-world country to becoming a global economic superpower.

In the last 40 years, China’s significant economic growth has increased its role in the world both as a trade and investment partner and as an international Institution member in the United Nations (1945), World Trade Organisation (2001), and World Bank (1980). As a result, China holds a more influential and significant role in the world today than 40 years ago and more recently demonstrating a more mature and assertive stance.

Internationally, China has increased activism and assertiveness within international institutions (“Institutions”) in recent years. Specifically, China increased engagement in formulating policies and positions within the Institutions and increasingly utilised such Institutions as platforms to articulate its’ position. Equally, today’s institutions represent a broader range of countries with different priorities, needs, and interests than the founding members. Therefore, Institutions are increasingly evolving from the post-second world war era, in which the USA played a primary role in the founding principles of the Institutions.

Domestically, China has adopted a collection of legislation to strengthen the national sovereignty and interests, including:

• The Cyber Security Law of the People’s Republic of China effective from 1 June 2017
• The Export Control Law of the People’s Republic of China effective from 1 December 2020
• Rules on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and other Measures, effective from 9 January 2021
• The Anti-Foreign Sanctions Law of the People’s Republic of China effective from 10 June 2021
• Data Security Law of the People’s Republic of China effective from 1 September 2021

For companies and individuals doing business in or with China, such legislation defines business operations – especially cross-border activities in several areas.

With a rapidly growing middle-class in China, the Chinese market for many companies is an increasingly important and growing market segment. Therefore, companies either invested or planning to invest in the Chinese market cannot disregard national sovereignty and interests’ compliance within their business operations. Below, we highlight the three key areas of national sovereignty and interests’ compliance applicable to companies doing business in or with China.

Cyber and data security

Cybersecurity for many countries is a top national priority to maintain secure networks and protect data from cyber-attacks.

In China, cyber security is centred on the security of the collected data, and companies are obliged to ensure networks collecting and processing the data are secure, monitored and shall not endanger national security or sovereignty.

The Cyber Security Law of the People’s Republic of China (“CSL”) and Data Security Law of the People’s Republic of China (“DSL”) are two primary legislation governing cyberspace and affect all companies working with data collection, processing, and management in China.

Cyber Security Law

The CSL establishes the compliance framework for network operators and is the overarching law for cybersecurity.

Under CSL, the network operator is defined as owners and administrators of the network and network service providers and obliged to ensure servers and data stored, transmitted, or created on such servers are secure and protected from cyber-attacks. Furthermore, the CSL outlines a Critical Information Infrastructure (“CII”), which subjects information crucial to national security and economy to store the collected and produced personal information and important data within the territory of mainland China. Any data required to be transmitted aboard shall be conducted under measures of the Cyberspace Administration of China.

Data Security Law

DSL sets forth an overarching framework to regulate data handling and management accordingly with national sovereignty, security, and development interests.

Under the DSL, the scope and definition of data include any record of information in electronic or other forms and imposes an extraterritorial application to China-related data handling and management.

Organisations and individuals are obliged to ensure and formulate data management policies, cooperate with public security and national security organs that require their data for national security or criminal investigation. Mismanagement of data, specifically those handling important data could face significant liabilities for both the company and individual.

Export Controls

Prior to the adoption of the Export Control Law of the People’s Republic of China (“ECL”), export controls were scattered across several laws. The ECL is the first comprehensive framework establishing export controls, a list of controlled items, and provisioning extra-territorial application to individuals and organisations outside of China who endanger national security and interests.

Under the ECL any export of the controlled items from an individual or organisation within the territory of mainland China to an overseas individual or organisation is subject to certain obligations including obtaining the relevant license from the State Export Control Authorities. Controlled items are defined under the ECL as the following:

• Dual-use items which can be for civil and military purposes or helping to improve military potentials, especially goods, technologies, and services in design, development, production, or application utilised for weapons of mass destruction;
• Military products comprising of equipment, special production facilities, and other related goods, technologies, and services utilised for military purposes;
• Nuclear materials, including nuclear equipment, non-nuclear materials used for nuclear reactors, and related technologies and services;
• Technical materials and data related to the items listed above.

For companies with an international supply chain or engaged in cross-border research and development, the ESL has a significant impact on exporting operations. For example, foreign items containing components assembled or manufactured in China could be deemed as controlled items or cross-border research or technology transfer, activities such as research, inter-company research (where the research and development centre are in China), or technology sales to foreign enterprises could be classified as related technical material and data – thus subject to export control.

Addressing sanctions

In 2021, China addressed the application of foreign legislation and sanctions to Chinese individuals and legal entities both within and outside of the territory of China. Two main legislation were enacted and established a stricter stance against foreign economic sanctions against Chinese organisations and individuals.

Rules on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and other Measures

Early this year, the Rules on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and other Measures (“Rules”) were promogulated by the Ministry of Commerce. The Rules provision a working mechanism for Chinese companies and individuals affected by extraterritorial foreign legislation that prohibit or restrict engagement in normal economic, trade, and related activities with a third State (or region) or its citizens, legal person, or other organisations. Affected individuals or entities are required to such matters to the State Council within 30 days. The State Council shall issue a prohibition order to oppose an unjustified extra-territorial application of foreign legislation and other measures.

Foreign companies in China especially multinationals should note the Rules stipulate any Chinese entities who comply with the unjustified extra-territorial application of foreign legislation subject to a prohibition order can be pursued in court.

The Anti-Foreign Sanctions Law of the People’s Republic of China

The Anti-Foreign Sanctions Law of the People’s Republic of China (“AFSL”) establishes the regulatory framework for foreign persons, both legal entities and individuals, acting against China’s national interests. Under the AFSL, organisations, individuals, and affiliated individuals who directly or indirectly participate in formulating, deciding, and implementing discriminatory restrictive measures against China shall be included in a Sanctions List (“List”). Those included in the List shall be subject to penalties including visa restrictions, prohibitions, or restricted conduct in transactions, cooperation, or other activities with Chinese organisations or individuals. Therefore, for foreign companies and individuals doing business in or with China, AFSL significantly impacts external conduct and communications, and public relations.

Whilst some may view a more assertive China negatively, China’s international significance and role cannot be disregarded. Specifically, in the business world, companies involved in the Chinese market should evaluate their full operations and third parties’ relations and update relevant policies or establish China-specific policies, otherwise risk legal penalties and economic losses. Unless companies forgo the China market completely, the recent legislative movements in strengthening national sovereignty and interests should be reflected in company operations and policies. Companies generating business from China cannot disregard China’s principles around national sovereignty and interests.

This content appears as a courtesy of Horizons Corporate Advisory, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.horizons-advisory.com. 

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The Personal Information Protection Law of the People’s Republic (“PIPL”) takes effect from 1 November 2021. Companies engaged in processing the personal information of individuals located in China are obliged to implement necessary measures.

Below, we highlight the mandatory requirements for foreign companies under the PIPL:

1. User Consent

Under PIPL, companies may only collect personal information when the individual’s consent is obtained. The consent shall be voluntary and the individual shall be explicitly informed. Individuals can request how their personal information is collected, stored, and require such information to be corrected and deleted.

Companies processing personal information (‘the processors’) are obliged to allow the individual to decline. When users withdraw their consent, the processors shall halt the collection or promptly delete the collected personal information.

Companies outside of China are not exempted from PIPL. Any company outside of China and processing the personal information data of individuals in China can be subject to PIPL. Specifically, PIPL outlines the following circumstances for companies outside of China:

• Where the purpose of the activity is to provide a product or service to an individual located within China;
• Where the purpose of the activity is to analyze or assess the behavior of an individual within China; or
• Any other circumstance as provided by law or administrative regulations.

Practically, companies outside of China should conduct a risk assessment of their personal information database.

2. Equal treatment for consumers

PIPL forbids companies from utilising automated decision-making functions to increase online sales. A company cannot implement unreasonable differential treatment of individuals – such as prices or terms. In other words, special discounts for new customers cannot be utilised, without reasonable grounds. Individuals shall also have the option to withdraw from any push marketing based on automated decision-making.

3. Stricter stance to sensitive personal information

The PIPL classifies the following as sensitive personal information and companies may only process such data for a specified purpose.

• Religious beliefs;
• Biometrics;
• Specific identities, medical and health;
• Financial accounts, whereabouts and other information of a natural person;
• Personal information of minors under the age of fourteen

Companies shall adopt strict measures to protect such data and inform the individual of the necessity and the impact on their rights and interests. For personal information of a minor under the age of fourteen, processors shall obtain the consent of a parent or guardian of the minor.

The stricter stance towards data collection of sensitive personal information significantly affects human resources and educators (minors under the age of fourteen). We advise such departments to align data management policies under the PIPL provisions, without any further delay.

4. Cross-border data transfers

Under PIPL, companies may only transfer personal information outside of mainland China by meeting one of the following conditions:

• Where a security assessment organised by the national cyberspace authority has been passed;
• Where a certification of personal information protection has been provided by a professional institution, under the regulations of the national cyberspace authority;
• Where a contract in compliance with the standard contract provided by the national cyberspace authority has been concluded with the overseas recipient, establishing the rights and obligations of both parties; or
• Where any other condition prescribed by law, administrative regulations, or the national cyberspace authority are met.

For companies, especially multinationals working with the personal information of employees and suppliers located in China, implementing the provisions to transfer personal information is essential to avoid penalties.

PIPL shall significantly affect businesses processing the personal information of individuals located in mainland China. Particularly, PIPL stipulates specific rights of individuals in activities related to the processing of personal information, including the right to access and make copies of the personal information processed.

Violators can face fines up to RMB 50 million (US$7,74 million), or up to five percent of annual turnover. Violators located outside of mainland China may be included in a blacklist and publicly announced.

Therefore, we recommend companies doing business in or with China to conduct a data mapping assessment including a thorough review to identify which data is collected, stored, process, and employee access to such data. Data management policies should be revised and relevant training provided to employees, so that PIPL is correctly implemented into the company.

This content appears as a courtesy of Horizons Corporate Advisory, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.horizons-advisory.com. 

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Less than 30 days till the world’s largest import-themed expo, CIIE will be held in Shanghai from 5-10 November and CCG has been invited to exhibit for the second time.

CCG is made up of business and legal advisors who work together to provide clients with smart corporate solutions that effectively facilitate cross-border activities, CCG is honoured to participate again in this prestigious event.

PRESIDENT XI JINPING first announced the CIIE annual trade fair at the Belt and Road Forum for International Cooperation in 2017, with the first expo held in November 2018. With foreign direct investment (“FDI”) in the mainland rising year on year, CIIE is pivotal in assisting foreign goods and services launching in China and reaching Chinese consumers. Equally, the high international media coverage coupled with national and local government support offers foreign companies a crucial platform to generate business opportunities, strengthen international trade and cooperation with key industry players.

As part of the exhibition, CCG will highlight and discuss the most recent trends in laws and rules for foreign companies engaged in or with China.

With the consistent changing business landscape, businesses face challenges in navigating through numerous regulations. Many cross-border investment issues remain steeped in cultural and language barriers, especially for investments in unfamiliar jurisdictions, such as China. CCG offer foreign investors engaged in China a local gateway to facilitate their investments. CCG leverages multidisciplinary professionals to allow the client to speak with a local advisor in the comfort of their home country or region and erase language and cultural difficulties. The local team continuously follows the investment, so the controlling dashboard of the investment in China is always in the investor’s hands.

Dr Roberto Gilardino, CCG President

“For CCG, our participation at CIIE enables us to be amidst the action and within the significant exchange of western and Chinese entrepreneurs. As a result, the priority is to seize the opportunities, further our understanding of decision-makers and generate business projects. Equally, we remain committed to providing practical advice to our clients, which extends beyond the mere law and tax opinions and procedures. Our expertise offers clients updated know-how, seasoned experience, and an ability to anticipate challenges. Therefore we remain steeped in reality and practicality as opposed to the traditional approach of the typical law firms.

In 2021 we achieved successful and tangible results from the third CIIE, which propelled CCG’s recognition internationally. In addition, from the connections generated in our participation, we effectively facilitated several acquisitions in 2021. As a result, we anticipate good outcomes from this year’s participation to further projects in 2022. ”

Bas Besseling, Secretary

“CIIE plays a significant role in facilitating the development of professional services. Last year, through our participation of CIIE, we generated strong leads with our global clients and wider network. For many businesses, China is the market to develop and expand in, therefore having CCG professionals structure the investment in a jurisdiction, that is unfamiliar for many investors, enables the investors to focus on the business aspects. We are honored to be invited again to exhibit in CIIE and believe the expo will generate excellent connections with foreign businesses in China.”

Martin Hütte, Treasurer

“Whilst many may be concerned with China closing the doors for foreign business, we believe there is ample opportunity for foreign businesses. Although, the foreign investment landscape in China has significantly changed in the last 40 years. Companies entering China shall be aware of not only the changing market trends but the current legal obligations for foreign investors. CIIE is a fantastic opportunity for foreign companies to present and launch goods and services to Chinese consumers, as well as gain first-hand insights in the market. For CCG this year, we are focused on recent legislation adopted, which impacts both companies aboard and in China.”

Despite the pandemic, CIIE attracted approximately 400,000 visitors, 411 new products, technologies, and services were exhibited, and a total value of 72.62 billion USD in intended deals were signed. This year’s CIIE boasts an exhibition area of 360,000 square meters for enterprises.

If you want to know more about CCG’s participation in CIIE this year, please contact Ms Miranda Dong at hb.dong@theccgway.com. We look forward to you joining our CIIE experience.

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Das Bundesgericht nahm den folgenden Sachverhalt zum Anlass, einen Grundsatzentscheid im Bereich der Prostitution zu fällen (BGE 6B_572/2020):

Ein Mann schaltete auf einer Kleinanzeigeplattform ein Inserat, in welchem er nach jungen Frauen suchte, die gegen Entgelt eine Nacht mit ihm verbringen würden. Daraufhin meldete sich eine Frau bei ihm, welcher er mehrmals versicherte, dass er ihr das zuvor vereinbarte Entgelt nach dem Geschlechtsverkehr übergeben werde. Überdies holte er die Frau am vereinbarten Treffpunkt in einem teuer aussehenden Wagen ab und gab auf der Fahrt ins Hotelzimmer – unter Angabe einer falschen Identität – vor, dass er im Bereich «Banking and Finance» tätig sei.

Nach getaner Arbeit machte sich der Mann indessen ohne zu bezahlen aus dem Staub und wurde von der Frau prompt wegen Betrugs zur Anzeige gebracht.

Das Bundesgericht stellte in einem ersten Schritt fest, dass der Frau aufgrund der gesamten Umstände keine Leichtsinnigkeit vorgeworfen werden könne, weil sie nicht auf Vorleistung bestanden habe und bejahte damit eine arglistige Täuschungshandlung des Mannes.

Dieser stellte sich auf den Standpunkt, dass der Prostitutionsvertrag sittenwidrig und damit nichtig sei, wodurch die Frau keinen rechtlich geschützten Anspruch auf Entrichtung des Entgelts habe.

Auch dieses Argument verwarf das Bundesgericht und führte aus, dass entgegen der bisherigen Rechtsprechung nicht mehr eine Sittenwidrigkeit des Prostitutionsvertrags angenommen werden könne. Dies deshalb, weil es sich bei der Prostitution aufgrund eines Wandels in den Wertanschauungen um eine «sozialübliche und zulässige Tätigkeit» handle. Die vorinstanzlichen Verurteilungen des Mannes wegen Betrugs wurden durch das Bundesgericht somit bestätigt.

Der Entscheid ist zu begrüssen. Nicht zuletzt deshalb, weil Löhne von Prostituierten u.a. der Einkommens- und Vermögenssteuer sowie der AHV-Beitragspflicht unterliegen. Insofern ist es konsequent, dass dem Lohn einer Prostituierten nun auch ein strafrechtlicher Schutz zuerkannt wird.

Author: Darko Radovic

This content appears as a courtesy of HütteLAW, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.huettelaw.ch.

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Seit langem bestand Bedarf, erwerbstätigen Personen die Betreuung von kranken Angehörigen, insbesondere von Kindern, zu ermöglichen. Nun wurden die rechtlichen Voraussetzungen durch das neue Bundesgesetz über die Verbesserung der Vereinbarkeit von Erwerbstätigkeit und Angehörigenbetreuung geschaffen. Das neue Gesetz wurde in zwei Stufen in Kraft gesetzt. Bereits seit 01.01.2021 gelten unter anderem die Regelungen über den Vaterschaftsurlaub (siehe Beitrag vom 26.01.2021) sowie den Betreuungsurlaub für kranke Familienmitglieder oder Lebenspartner (maximal drei Tage pro Fall und maximal 10 Tage pro Jahr).

Am 01.07.2021 trat nun auch der neu eingeführte Betreuungsurlaub für Eltern von schwer erkrankten Kindern in Kraft. Künftig können Eltern mit einem schwer erkrankten oder nach einem Unfall schwer beeinträchtigten Kind 14 Wochen Betreuungsurlaub nehmen. Der Betreuungsurlaub kann am Stück oder in Etappen innerhalb von 18 Monaten bezogen werden. Falls beide Elternteile erwerbstätig sind, können die Eltern den Betreuungsurlaub aufteilen, wobei jedoch jedes Elternteil maximal 7 Wochen beziehen kann.

Während des Betreuungsurlaubs besteht ein Anspruch auf Betreuungsentschädigung. Diese wird in Taggeldern ausgerichtet und beträgt 80 % des vor dem Betreuungsurlaub erzielten durchschnittlichen Erwerbseinkommens.

Eine schwere gesundheitliche Beeinträchtigung beim Kind liegt vor, bei

• einschneidende Veränderung des körperlichen oder psychischen Zustandes;
• schwer vorhersehbarer Verlauf oder Ausgang der Veränderung oder es ist mit dauerhafter oder zunehmender Beeinträchtigung oder mit Tod zu rechnen;
• erhöhter Betreuungsbedarf durch die Eltern;
• Notwendigkeit der Unterbrechung der Erwerbstätigkeit eines Elternteils zur Betreuung des Kindes.

Author: Cornelia Arnold

This content appears as a courtesy of HütteLAW, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.huettelaw.ch.

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The Swiss Posted Workers Act (EntsG) applies to postings to Switzerland. It intends to prevent foreign employers from employing their workers in Switzerland at dumping prices and under poor working conditions.

So what are the differences between posting of employees either to an external client or to an own subsidiary and what are the differences between employees from EU/EFTA countries or from non EU/EFTA countries (so called third countries)?

A. Posting of employees to an external client

“External posting” means, that the employee temporarily fulfils an assignment for his foreign employer at a Swiss client. There is a project contract agreed between the Swiss client and the foreign employer. The posting is allowed for a limited period (maximum 2 years), and related to a special project, service or client.

1. Under 90 days

If an employer from an EU/EFTA country wants to send an EU/EFTA citizen or a person from a third country to Switzerland, the following main requirements needs to be considered:

• No working permit is necessary, based on the Agreement for Free Movement of Persons between EU/EFTA and Switzerland;
• there is a reporting obligation for postings over 8 days a year via an online reporting tool; but for certain sectors (i.e. hotel, restaurant, construction sector), the obligation to register the employee exists from the first day, no matter how long the posting lasts;
• the employment conditions of the foreign employees must be in accordance with the conditions of Swiss law (salary, working / rest time, holidays etc.);
• if the posting is only for a few days or weeks, an additional posting contract is not necessary; a posting contract is a contract that replaces or supplements the previous employment contract for the duration of the posting and regulates all details concerning the posting; in the case of a short posting period, an expense regulation will be more practical;
• for employees of third countries, the same easy way only applies, if they have already been employed by the EU/EFTA employer in an EU/EFTA country for more than 12 months prior to the posting

If an employer from a third country wants to send employees (EU/EFTA or third countries) to Switzerland, the main requirements are:

• a working permit is necessary, if the posting is for more than 8 days a year, with exemptions for specific sectors for which a permit is needed from the first day on;
• the economic interests of Switzerland must be met;
• employee must be a manager, specialist or qualified person;
• application must be in line with the Swiss salary and working conditions.

Please be aware, that the 90-days are attributed to the employer, so if he sends several employees at different times, their stays in Switzerland are added together.

2. Over 90 days

For postings of more than 90 days, EU/EFTA citizens can no longer profit from any privileges, because the Agreement between EU/EFTA and Switzerland on the Free Movement of Persons is not applicable. So it makes no difference whether the employer and employee are from an EU/EFTA country or a third country. The same – now stricter – requirements of the Swiss migration law apply:

• a working permit is necessary;
• the economic interests of Switzerland must be considered, including of the priority of Swiss nationals and residents;
• only managers, specialists and qualified employees;
• Swiss salary and working conditions must be met;
• a posting agreement is necessary; and so forth

B. Posting of employees to an own subsidiary or own branch

If a company sends employees to a subsidiary or branch in Switzerland, this is an internal posting without the involvement of a third company. This is basically a case of the per se prohibited hiring out of staff from abroad. Staff leasing is when the employer (lender) hires out his employee to a third party (company of assignment). The lender remains the legal employer, the company of assignment becomes the de facto employer and has the authority to issue directives, etc.. In the case of a posting, on the other hand, the right to issue instructions etc. remains with the sending employer.

Although the hiring out of staff from abroad is generally prohibited, Switzerland tolerates the hiring out of staff within a group of companies. But please be aware, that this will only be accepted if

• it is an individual or exceptional case; or
• if the sole purpose is the acquisition of experience (technical, linguistic) or the transfer of know-how within the group

The requirements and differences between citizens from EU/EFTA or third countries and also the differences between a posting under or over 90 days are mainly the same as discussed before: EU/EFTA citizens need for postings under 90 days no working permit, for a posting of more than 90 days, a working permit is necessary. Employees of third countries need always a working permit, only highly qualified employees are allowed and the Swiss economic interests must be considered etc.

Author: Cornelia Arnold

This content appears as a courtesy of HütteLAW, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.huettelaw.ch.

The post Posting employees to Switzerland appeared first on China Collaborative Group.

The AFSL establishes the regulatory framework for foreign persons, both legal entities and individuals, acting against China’s national interests and expands the scope of penalties and obligations.

For foreign companies and individuals doing business in or with China, AFSL significantly impacts external conduct and communications and public relations.

Previously, several fashion multi-national companies faced criticism in China for boycotting cotton produced in Xinjiang province. Under the AFSL, such business conduct could constitute organisations directly or indirectly involved in discriminatory restrictive measures against Chinese organisations. In such a case, both the company, senior management, and affiliated individuals could face sanctions and penalties in China.

Therefore, China-related marketing conduct and public communications should be risk assessed before execution, specifically for multi-national companies. In this below, we highlight the main impacts of AFSL for those doing business in or with China

1. AFSL objectives

The formulation of AFSL focuses on two main aspects: safeguarding the national sovereignty, security, and development and protecting the legitimate rights of Chinese citizens and organisations.

AFSL provisions the right to take corresponding countermeasures to any foreign country that conducts the following:

• Violates internal law and
• The basic norms of international relations and
• Uses various pretexts or according to its laws to contain or suppress China and
• Takes discriminatory restrictive measures against Chinese citizens and organisations or interferes in China’s internal affairs.

2. Sanction list

The AFSL extends to organisations, individuals, and affiliated individuals who directly or indirectly participate in formulating, deciding, and implementing discriminatory restrictive measures against China. Such organisations and individuals shall be included in a Sanctions List (“List”) and subject to penalties.

For individuals and affiliated individuals included in the List, the AFSL defines as below:

• The spouse and direct lineal family members of the individuals included in the List;
• The senior executives or actual controller or the organisations included in the List;
• The organisations in which the individuals included in the List serve as a senior executive;
• The organisations which the individuals or organisations included in the List actually control or participate in their establishment and operation.

Therefore, such extension of the List could directly affect individuals and organisations indirectly involved in the violation. In practice, a contingency plan should be developed for both organisations and individuals since those blacklisted can face restrictions both in China and involvement with Chinese organisations and individuals, as highlighted in point 3.

3. Penalties

Organisations and individuals within the List and dependent on the actual circumstances could be subject to the following penalties:

• Refusal to issue visas, banning entry into China, invalidating visas, and deportation
• Sealing up, seizing, and freezing movable, immovable, and other types of property in China;
• Prohibiting or restricting from conducting related transactions, cooperation, or other activities with domestic organisations or individuals.
• Other necessary measures.

It is important to note that the penalties listed above are non-exhaustive and subject to the actual circumstances. Equally, though there are no extra-territorial measures explicitly stipulated in the AFSL, the restrictions of visa application and conducting related transactions, cooperations, and other activities with both domestic and individuals can subject violators outside of China to penalties – visa restrictions, conducting business with domestic Chinese companies and so forth.

4. Mandatory implementation of countermeasures

Organisations and individuals in China are required to implement any government countermeasures adopted by the relevant departments of the State Council. Any organisations or individuals who fail to implement or cooperate with such countermeasures shall be investigated.

Equally, an organisation shall not implement or assist in implementing discriminatory restrictive measures undertaken by a foreign country against a Chinese citizen or organisation. Such Chinese citizen or organisation could file a lawsuit to the people’s court to request to cease infringement and compensation for any loss.

For foreign companies, we recommend reviewing any future external communications and public relations. Additionally, we advise companies to develop internal China-specific policies to migrate indirect or direct violations from either/ both the company and individuals.

The AFSL follows from the China Export Law and the Rules on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and Other Measures effective from 1 December 2020 and 9 January 2021, respectively (“Laws’).

The enacted Laws establish a strict stance against foreign economic sanctions against Chinese organisations and individuals.

Though some may view the Laws as restricting business operations, the Laws reflect strong protection of national sovereignty and interests. For many companies doing business in or with China risking external mishaps such as insensitive cultural marketing or recognition of Taiwan as a country could lead to serious legal consequences and economic impacts such as loss of the China market. Therefore, companies shall implement policies to mitigate risks for both company and individuals.

If you have questions or would like to know more about the anti-foreign sanctions services available to you from Horizons, please contact us at +86 21 5356 3400 or email talktous@horizons-advisory.com.

This content appears as a courtesy of Horizons Corporate Advisory, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.horizons-advisory.com. 

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