§   Current state of Prime Services market

§    Key concerns for Fund Managers

§    Analysis of different Prime Brokerage models and various options available to Funds

§    Discussion on the principal issues arising out of a Prime Brokerage relationship and tips on how to negotiate specific provisions including:

o    Rehypothecation rights and how they affect claims against prime brokers

o    Segregation of assets and no lien accounts

o    Two-way events of default

o    Control of close-out mechanism

o    Security interest provisions in favour of PB and its affiliates

o    Margin calls

§    Recent legislation / regulatory initiatives affecting Prime Brokerage

 

§       Framework for addressing conflicts

o      Identification: analyzing relationship between the firm, clients and employees

o      Resolution: disclosure, management or avoidance

§       Employee conflicts

o      Personal account dealing

o      External directorships

o      Outside business activities

o      Charitable and political activities

o      Gifts & entertainment

o      Use of Firm systems and facilities

o      Investment alongside the firm or clients

§       Organizational conflicts

o      Independence of control and back office functions

o      Information barriers / Chinese walls

o      Hedging activities / front running

o      Compensation and incentives

o      Reporting lines and organizational structure

o     Business internalization / cross-divisional referrals

o      Proprietary trading

o      Multiple roles in a single transaction

§       Client conflicts

o      Large position accumulation

o      Financing activist hedge fund positions

o      Key client programs

§       Case studies and practical examples

• Who is an "occupier" for the purpose of the Occupiers Liability Ordinance (Cap 314)
• "Common duty of care" examined
  
  • duty to children
    
  • duty to skilled visitors
    
    • recent case of Waan Chuen Ming vs Lo Kin Nam trading as Kar Kin Engineering & Supplier Co and Luen Hing Fat Coating & Finishing Factory Limited
      
    • Premises liability an "activity duty" vs "occupancy duty"?
      
• duty to trespassers
  
• position of landlords
  
• duty implied in contract and protection afforded to strangers to contract
  
• Comparing causes of action based on breach of common duty of care vs. negligence / nuisance
  
• Occupiers’ liability in the context of multi-storeys buildings
  
• Defences – contributory negligence; engaging independent contractors;  extent of duty to check credentials of independent contractors etc.
  
• Pleadings & Procedure
  
• Public liability insurance and tip for occupiers to minimize potential liability

• Overview of structures of PE fund: Limited Partnerships Structure v. Corporate Structure; types of strategies under most PE fund setting up now - e.g. distressed, special situations, property
• PPM / Offering Memorandum: key clauses explored
• LPA: interaction with PPM / offering documents - key clauses explored for LP
• Articles of Association / Shareholders Agreements amongst shareholders - differences from LP structure - what to watch out for?
• Co-investment Agreement
• Other documents:
  • Investment Management Agreement /Investment Advisory Agreement: key terms - e.g. key man provisions, indemnities, etc.
  • Subscription Documents v. Transfer Forms
  • Side Letters
• Documentation Issues arising from recent financial crisis
• Exercises / examples of clauses in various agreements

• Terms of tenancy agreements
• Rent and related issues
  
  • Withholding rent
    
  • Set-off against rent
    
  • Forfeiture of deposits where rent unpaid
    
  • Distress for rent
    
• Forfeiture of tenancy and action for possession
• Breach of covenant, repudiation and damages
• Statements of claim

§   Overview of AML and CTF Legislation (including latest HKMA revised AML Guideline, Supplement and Interpretative Notes; FSTB consultation on proposed AML legislation)

§    Establishing an AML monitoring system

§    KYC – client identification techniques

o    Face to face interviews (by RM) – what to say and how to ask?

o    Application forms / account opening forms – what should be in there?

o    Beneficial Owner’s account:  how to trace ultimate beneficial owners? How “deep” should you go given that money launderers usually use tax haven jurisdictions and trusts

o    Document collection – what to collect for the following categories:

§    Individuals

§    Corporates – privately owned v. public listed companies; factors to consider:  place of incorporation and purpose of company

§    Trusts – how far should you go? Beneficiaries? Registered Trustee v. Private trustee

§    Limited Partnerships

§    Financial Intermediary / Institutions

§    Fund – differences between corporate, trusts & LPs – can you go and get info on end investors – e.g. what would be the % threshold – anyone single 1 investor over 10%?

§    Politically Exposed Persons (PEP) – who are considered to be PEP? What type of enhanced due diligence?

o     Independent due diligence: various databases / checklists – how reliable are they?  

§     Transaction monitoring – how to effectively monitor suspicious transactions

o    Typical red flags for money laundering and terrorist financing – what are they?

o    Suspicious transaction reporting – how to do that? Does it affect client relationship? Confidentiality issues and other concerns

§      How to ensure that AML / CTF programme has been complied with

o    Staff training / education

o    Internal controls

§      Case Studies – ML cases relating to Financial Institutions

§       Development of securities markets and Securities Law in China

§       Overview of the framework of the PRC Securities Law

§       The PRC Securities Law of 2005 – key amendments and implications:

o      Securities and public offerings defined

o      Sponsor system

o      Improved listing procedures and criteria

o      Lower capital requirements

o      Enhanced protection for shareholders

o      Director’s liability

o      Derivatives and OTC securities

o      Private placement exemption

§       Share / stock offering in the PRC: primary offering and secondary trading

o     Insider dealing and other types of market misconduct

o      Disclosure requirements – corporate governance

§       Establishment of securities companies

§       Role of the CSRC as the Securities Regulatory Authority: powers and responsibilities

§       Recent developments in the securities markets, e.g.:

o      M&A Regulations in the PRC securities market

o      QFII – Regulation and Practice

o      Listing of PRC companies overseas

o      Share Structure Reform: Conversion of non-tradable shares to tradable shares

o      Tightened enforcement under the securities law: recent cases and investigations

§       Foreign Strategic Investor Measure

§       Compliance considerations

• Why are Trust used?
• What?
  
  • What sort of trust structures are used to achieve the reasons for the use of trusts?
    
  • In particular, how is the wish for retention of control by a Settlor best catered for?
    
  • What initial information is needed?
    
• Who?
  
  • Who are the persons concerned in the trust structure?
    
  • Who should be making trust structures from a practical and economic viewpoint (eg minimum net asset for set up to be worthwhile)?
    
  • Who should be chosen as Trustee and as Protector? - Fees involved
    
  • What special considerations are there for all those concerned?
    
  • Special considerations for Mainland clients?
    
• Where?
  
  • What is the current situation with regard to the change of trust law in Hong Kong?
    
  • How would the proposed new trust law in Hong Kong compared with trust laws in other jurisdictions: eg Cayman, BVI, Singapore, Guernsey?
    
  • Which jurisdictions offer the best law for particular requirements?
    
  • What regulatory, taxation and other implications need to be considered for the choice of jurisdiction?
    
• How?
  
  • What is the procedure for setting up a trust structure?
    
  • What documentation is required? What particular drafting considerations are there?
    
  • What anti-money laundering and other regulatory requirements need to be met?
    
  • How should property be transferred into the trust structure?
    
  • Who will be entitled to what information concerning the trust structure ongoing?
    
  • How and by whom should ongoing matters concerning the trust structure be dealt with?
    

• Objectives of stress testing
• Engaging stakeholders and integration with risk governance
• Designing a robust and comprehensive stress testing framework that is credible
• Regulatory developments in response to the financial crisis
• Integration of market and credit risk
• Case studies and Reverse Stress Testing
• Summary and questions
  

• to understand what influences people in reaching a decision,
• to be able to reach an agreement that is acceptable to all parties, and
• to be more persuasive when negotiating across the table.

Key components of the workshop include:

• The principles of social influence – examination of Robert Cialdini’s 6 principles
• The Negotiating Matrix – 6 possible approaches to reaching an arrangement
• Tactics – best practice preparation
• Techniques – being persuasive across the table

§         Purpose of financial statements and why do they need to be prepared?  Companies Ordinance (CO), Listing Rules requirements, HKFRS, HKAS

§         SME-FRS Framework for SME. Difference between preparing accounts for SMEs under the HKFRS v. SME-FRS regimes

§         Components of financial statements – what are these and how are they prepared?

o        Statement of Financial position

o        Income statement

o        Assets, liabilities and shareholders equity

o        Recognition criteria, debits and credits

o        Cash flow statements and components

o        Key HKAS pertaining to individual financial statements

• Administrative route under ECO
  
• Protocol to establish right of claim under ECO - duty of employer vs. employee
• Basic requirements for employer’s liability under ECO
  
  • Was there an accident?
    
  • Was the claimant an employee?
    
  • Did the accident arise out of and in the course of the employment?
    
• General formula for determining compensation under ECO
  
  • Fatal cases vs. Partial incapacity
    
  • Calculation of “earnings” at time of accident
    
  • Calculation of future loss of earning
    
  • (Paper Mills formula – when applicable?)
    
• Procedure for assessment:
  
  • By Commissioner / Assessment Board?
    
  • Objection / review / appeal of assessment – to whom, how and when?
    
  • Judicial route
    
    • Direct application to District Court (s18A)
      
    • Appeal to District court under s 18 (1) vs. s16
      
    • Appeal to Court of Appeal
      
• Contentious issues related to ECO proceedings (illustrated with case studies):
  
  • Does wilful misconduct disentitle applicant’s claim?
    
  • Can employer limit EC compensation by agreement?
    
  • Time limit under ECO – any reasonable excuses for extension of time, when there is e.g.
    
    • Failure to claim within 24 months of accident?
      
    • Appeal made after 6 months of issuance of certificate?
      
• Who shall be joined as parties to the action?
  
• What if the employee was an illegal immigrant / “overstayer"
  
• Concurrent claims under ECO / common law
  
• Operation of Employees Compensation Assistance Scheme

§         Group consolidation and different accounting treatments and implications

§         Valuation issues in financial statements

§         Key HKAS pertaining to consolidated financial statements and valuation issues

§         Financial ratio analysis and implications

§         Liquidity, working capital, cash operating cycle management

§         Case study

 

• Relationship of claims under ECO and common law EC claims
  
  • Can EC claim be included in common law action of negligence?
    
  • Operation of res judicata
    
• Basic issues which affect employer's liability under common law (with case illustration):
  
  • Was the Claimant an employee / independent contractor / partner / visitor?
    
  • Did the accident occur in the course of employment?
    
  • Was the Employer negligent?
    
• Different kind of employer's duties (with case illustration):
  
  • Breach of common law duty of care
    
  • Breach of implied contractual terms
    
  • Breach of statutory duty
    
  • Breach of duty under Occupier's Liability Ordinance
    
• Possible defences of employer
  
  • Volenti
    
  • Delegation to independent contractor
    
  • Contributory negligence
    
  • Intervening acts etc.
    
• Contributory negligence of employee - when and how? (with detailed case studies):
• Assessment of damages and issues of quantum:
  
  • Non-fatal cases:
    
    • Pain, suffering and loss of amenities (PSLA)
      
    • Loss of earning, loss of earning capacity
      
    • Other special damages
      
    • Multiplier and multiplicand
      
  • Fatal cases:
    
    • Loss of dependency
      
    • Loss of accumulation of wealth
      
    • Funeral expenses, bereavement etc.
      
• Practical tips to note in handling common law action