02.05.2024 Newsletter
Newsletter April 2024
We are happy to inform you about the latest legal developments in Asia. The authors of the articles are at your disposal for further questions and information.
CHINA: Legal bases and framework conditions in Germany and China
Legal bases and framework conditions in Germany and China
Digitalisation and the rapid development of information and communication technologies, not to mention the coronavirus pandemic, have fundamentally changed the world of work in recent years and have strongly promoted the introduction of remote work as a working model in both Germany and China.
On the one hand, relocating office workplaces to locations outside the company offers employers and employees a wide range of advantages, but on the other hand, mobile working brings with it both legal and practical challenges. What exactly is meant by the term ‘remote work’ in China and Germany? What is the legal framework for remote work in the respective countries? How can the labour law risks associated with remote work be minimised?
These and other questions are answered in the first part of our two-part article entitled ‘Remote work and its compliance challenges - legal bases and framework conditions in Germany and China’, which was published in the trade journal Compliance Berater (CB 4/2024).
Part 1 of our article can be found at this LINK.
We will inform you about the publication of the second part of our article.
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Your point of contact in China: Rainer Burkardt
Burkardt & Partner
Suite 2507, 25/F, Bund Center
222 Yanan Road (East)
Shanghai 200002, P.R. China
CELL +86 186 1687 7153
TEL +86 21 6321 0088
FAX +86 21 6321 1100
JAPAN: New limits for overtime work in Japan since 1 April 2024
New limits for overtime work in Japan since 1 April 2024
Overtime work was largely and infamously unregulated in Japanese labor law for a long time. This changed in 2019 with an amendment of the Labor Standards Act. The reform placed certain limits on overtime work for the first time: In principle and with the possibility for temporary exceptions, overtime work has since been limited to 45 additional hours per month and 360 additional hours per year.
However, the Labor Standards Act provided for a grace period for certain industries. Construction workers, drivers (such as truck drivers), and doctors were exempted from the restrictions. As this grace period ended on 1 April 2024, overwork regulations now also apply to these industries. Especially regarding overtime work limits for truck drivers, there have been concerns about the ramifications for the Japanese economy and society as a whole. This matter became known as the “2024 problem”. It remains to be seen how Japanese society will be affected by overtime work restrictions for these critically important workers.
For companies active in the construction and transport industries (and for other companies employing drivers, construction workers, etc.) it is now important to check their employee’s overtime hours, to review and, where necessary, to adapt their overwork agreements (“Article 36 Agreements”) and employment regulations.
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Your point of contact in Japan: Michael Müller
Mueller Foreign Law Office
Shin-Kasumigaseki Building
3-3-2 Kasumigaseki, Chiyoda-ku
Tokyo 100-0013, Japan
TEL +81 3 6805 5161
FAX +81 3 6805 5162
MALAYSIA: Are we back on track for a free trade agreement between Malaysia and the European Union?
Are we back on track for a free trade agreement between Malaysia and the European Union?
There has been a standstill in talks over an FTA between Malaysia and the European Union for many years. However, since Anwar Ibrahim became Malaysia’s Prime Minister, the country has placed great emphasis on foreign direct investment and trade.
Against this background, we should not be too surprised that Anwar chose his recent visit to Germany in March to announce that “The time is ripe for us to rekindle discussions on the Malaysia-EU free trade agreement,” adding that with an FTA, Europe will be able to capitalise on Malaysia as a gateway to Asia.
Neither Malaysia nor the EU has set any official steps since Anwar’s statement in Germany. However, it is very positive move and it must be hoped that soon, specific actions will follow. Germany has been Malaysia’s largest trading partner among EU member nations since 2000, while Malaysia is the largest trading partner for Germany among Asean member states. An FTA would improve the trade relationships with both Germany and all other EU Member States.
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Your point of contact in Malaysia: Dr. Harald Sippel
Skrine
Level 8, Wisma UOA Damansara
50 Jalan Dungun, Damansara Heights
Kuala Lumpur, Malaysia
TEL +60 1 8211 4958
FAX +60 3 2081 3999
PHILIPPINES: Internet Transactions Act within the Philippines are being regulated by a new Act
Copyright Challenges for Lifestyle Entrepreneurs: Insights from the Icebergs Case in the Philippines
The Philippine Supreme Court ruled in the case of Icebergs Food Concepts, Inc. vs. FILSCAP (GR No. 256091) against Icebergs Food Concepts, finding it guilty of copyright infringement for playing copyrighted music through radios in its restaurants.
However, the Court noted that this ruling could have far-reaching consequences and could potentially have a discouraging effect on entrepreneurs interested in lifestyle-oriented businesses, such as cafes, boutiques, or fitness studios, where ambiance and experience play a crucial role and rather the idea of a lifestyle rather than a concrete product, such as third-wave coffee shops or similar establishments is being sold.
One of the primary concerns for entrepreneurs in lifestyle-oriented businesses is the additional cost of compliance with copyright laws, particularly regarding the use of music to create a specific ambiance. The need to obtain licenses or permissions for playing copyrighted music could significantly increase operating expenses, especially for small businesses with limited resources. This financial burden may deter entrepreneurs from pursuing ventures that heavily rely on creating a particular atmosphere through music or other copyrighted content.
The Icebergs Food Concepts case highlights furthermore the legal risks associated with using copyrighted material without proper authorization. Entrepreneurs may be deterred by the potential litigation and penalties associated with copyright infringement claims. The legal complexities surrounding intellectual property rights could discourage individuals from entering industries where the use of copyrighted content is prevalent, fearing potential legal liabilities and uncertainties.
The requirement to obtain licenses for playing music in public spaces may also impose creative constraints on entrepreneurs seeking to establish lifestyle-oriented businesses. They may feel limited in their ability to curate a unique atmosphere or express their brand identity through music and other copyrighted materials. This could hinder innovation and differentiation in the market, as entrepreneurs may opt for safer, less creative approaches to avoid copyright issues.
Finally, the compliance requirements and legal risks associated with using copyrighted content may act as significant barriers to entry for aspiring entrepreneurs. Established businesses with greater financial resources and legal expertise may have a competitive advantage in navigating these challenges, potentially stifling competition and limiting market access for new entrants.
Overall, while lifestyle-oriented businesses can offer unique and immersive experiences for consumers, the legal complexities surrounding copyright laws and intellectual property rights may discourage entrepreneurs from pursuing ventures in this space. Addressing these challenges through clearer regulations, streamlined licensing processes, and support mechanisms for small businesses could help mitigate barriers to entry and foster innovation in lifestyle-oriented industries. Even the court urged lawmakers to create exemptions to protect these small enterprises from copyright infringement suits. Their reaction remains to be seen.
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Your point of contact in the Philippines: Lutz Kaiser
Villanueva Gabionza & Dy Law Offices
20th/F Corporate Center
139 Valero St., Salcedo Village
Makati City 1227, Philippines
CELL +63 995 985 4957
TEL +63 2 8813 3351
FAX +63 2 8816 6741
SINGAPORE: Topic Data Protection: New Guideline for Application of PDPA on Personal Data of Children
Topic Data Protection: New Guideline for Application of PDPA on Personal Data of Children
On March 28, 2024, the Singaporean Personal Data Protection Commission ("PDPC") issued advisory guidelines ("Guidelines") clarifying how the data protection provisions in the Singapore Personal Data Protection Act of 2012 ("PDPA") apply to the personal data of children.
In today's increasingly digitized environment, where children are using the internet at a young age, the PDPC holds the view that organizations play a crucial role in ensuring that their products and services follow a "Data Protection by Design" approach (i.e., privacy measures are considered and integrated into the development of products/services).
The Guidelines are intended to apply to organizations whose online products and/or services are likely to be used by children (which is not limited to products and/or services specifically designed for or targeted at children). Some examples of such online products and services include social media, technology-assisted learning, online games, as well as smart toys and devices.
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Your point of contact in Singapore: Dr. Andreas Respondek
Respondek & Fan Pte Ltd
1 North Bridge Road
#16-03 High Street Centre
Singapore 179094
CELL +65 9751 0757
TEL +65 6324 0060
FAX +65 6324 0223
TAIWAN: Updates in IP law: Increased personal as well as national data protection in Taiwan
Updates in IP law: Increased personal as well as national data protection in Taiwan
Taiwan is improving its data protection. After the Constitutional Court declared the lack of an independent review body for data protection to be unconstitutional, the law on the protection of personal data was ultimately adapted and at the same time such an independent review body was set up, the Commission for the Protection of Personal Data. The responsible parties must ensure appropriate security measures to protect personal data from theft, fraud, etc. Violations are subject to a minimum fine of up to NTD 2,000,000 (approximately EUR 58,000, and for serious violations up to NTD 15,000,000 (approx. EUR 434,000).
Furthermore, the penalty framework in the National Security Act Taiwan was adjusted. The law punishes the theft of nationally significant technologies on behalf of a foreign party with up to 12 years in prison or a fine of up to NTD 100,000,000 (approx. EUR 2,900,000). A list of 22 protected national key technologies, which also includes trade secrets from semiconductor production and computer science, is publicly available. The amendment to the National Security Act also regulates foreign travel by employees involved in the research and development of confidential technology programs, particularly with regard to China. where prior approval is needed; this applies for three years after leaving the area.
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Your point of contact in Taiwan: Michael Werner
Eiger Law
Bldg. A, 2F, 25-2 Ren Ai Rd, Sec. 4
Taipei 10685
Taiwan
CELL +886 9 8726 1326
TEL +886 2 2771 0086
FAX +886 2 2771 0186
THAILAND: The „Work from Home Bill“ as part of the „Labour Protection Act”
The „Work from Home Bill“ as part of the „Labour Protection Act”
The Thai Parliment has passed the „Work from Home Bill“ (Labour Protection Act (No. 8) B.E. 2566 (2023)) with effect from 18. April 2023 verabschiedet. The new Work from Home Bill will supplement the existing „Labour Protection Act (No. 8) B.E. 2566 (2023)“ to better reflect today's working conditions. According to the accompanying legislative statement, the proposed amendments to the LPA aim to provide employers and employees with more flexibility in work arrangements, improve labour protection standards, promote job stability and improve the general welfare of workers in Thailand.
These changes are addressed in a new Article 23/1, which aims to promote work from home, including agreements between employers and employees, with the aim of improving employees' work-life balance and reducing traffic congestion and energy and fuel consumption.
The provision provides that the employer and employee may mutually agree that the employee may perform work which, by its nature, can be conveniently performed away from the workplace or office at any location, including the employee's home or residence, by preparing a written agreement containing the following details:
1. the duration of the work based on the mutual agreement;
2. normal working days and hours, rest periods and overtime;
3. conditions for holidays and time off;
4. the employee's work area and the employer's supervision; and
5. responsibility for the procurement of materials and equipment and for necessary expenses related to the work.
The amended LPA also grants employees working from home the ability to decline to communicate with their employer outside of established working hours. In addition, an employee who works from home or remotely has the same rights as an employee who works at a workplace in the company or in the office.
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Your point of contact in Thailand: Dr. Andreas Respondek
Respondek & Fan Ltd
United Center, 39th Floor, Suite 3904 B
323 Silom Road
Bangkok 10500, Thailand
CELL +66 89 896 4048
TEL +66 2 635 5498
FAX +66 2 635 5499