Best-laid plans

Janet Hui, the new co-chair of the International Bar Association’s antitrust section, talks to Winny Zhang about her ambition to broaden the horizons for Chinese lawyers in the competition arena, and her unusual career journey, switching from in-house to external and between different practice areas before landing in her chosen field

Acclaimed lawyer and JunHe partner Janet Hui took up the post of co-chair of the antitrust section at the International Bar Association (IBA) on 1 January, making her the first Chinese woman lawyer to be the co-chair of the antitrust section. She works in the role alongside Samantha Mobley, a senior partner in the London office of Baker McKenzie.

Founded in 1947 by 34 national bar associations, the IBA has expanded to a legal organisation with 190 bar associations and law societies, as well as 80,000 lawyers. The association is divided into 19 legal practice sectors, of which antitrust is one.

Although the appointment recognises her standing in the antitrust area, Hui didn’t start out there, or even in an entry-level position at a law firm. After graduating from the University of Hong Kong, she joined a Hong Kong-based real estate subsidiary of British multinational conglomerate Jardine Group in 1990 as its sole counsel.

After two years, she left to join local law firm Johnson Stokes and Master (JSM) – which later combined with Mayer Brown to become Mayer Brown – before specialising in mergers and acquisitions (M&A). In 1999, when new legislation opened the telecommunications sector in Hong Kong to more competition, Hui returned to the in-house community, joining Wharf T&T, then the second-largest fixed-line telecommunications operator in Hong Kong.

After relocating to Beijing for family reasons, Hui made the bold and rare move to pursue a career in the mainland’s much less developed but rapidly evolving legal market, putting her firmly on the path to becoming one of the most experienced antitrust faces in the region.

With a deep knowledge of both local and international antitrust matters, Hui shares with China Business Law Journal her perspectives on the latest trends in light of the country’s recent antitrust efforts, and a life story of embracing change.

China Business Law Journal: How do you feel about your new role and what are your plans for the IBA’s antitrust section?

Janet Hui: I participated in the IBA in 2010 and was invited to be a member 10 years ago. One of the features of this association is that only one representative is invited from each country and members change roles every two years. I began as a junior correspondent and was reviewed to see whether I had made any contribution to the organisation every two years. If you were evaluated lowly, a call-off [termination of the role] would come to you.

What is special about the latest term is that never has a Chinese woman lawyer held such a senior position internationally, that’s why I feel very lucky. Also, it is unprecedented that we have two women lawyers as co-chairs in this session.

So I have some thoughts. Firstly, Chinese lawyers can achieve senior positions on international platforms. Don’t belittle Chinese lawyers in relation to their peers in other countries. Secondly, the status of women lawyers has been continuing to rise in the world. Thirdly, the other co-chair and I mapped out a lot when we took office.

We will start by helping young lawyers to learn more about the international platform and promote their growth so that they can have a global antitrust perspective, in addition to understanding their own country’s antitrust law. We are also preparing some free training for them, both online and offline.

Secondly, the IBA hopes to come to China and do more outreach after China lifted most of its covid restrictions. Chinese lawyers were relatively less active on international platforms in the past, perhaps because of language, or the pandemic. I also hope to provide more opportunities for Chinese lawyers to find out the various practice areas and conferences available at the IBA, including our scholarships for lawyers who either write articles or do some research. If they do well, we will offer them scholarships and some awards.

My personal plans may go beyond the antitrust section, as I am also a member of the China working group in the Asia Regional Forum. I hope to do more outreach in China in the following years, so that lawyers from different cities can have more communication, and junior and senior Chinese lawyers will have more learning opportunities in different practice areas such as M&A, dispute resolution, compliance, real estate, etc. We hope to implement each of these plans in the next two years and some of them have actually already been launched.

CBLJ: The IBA has welcomed its second woman president in its 76-year history. You are also the first Chinese woman lawyer to co-chair the association’s antitrust section. How do you see the development of women’s status in the legal field?

Hui: This is a rather sensitive and important topic. Based on some of my observations in the international arena in the past decade or so, I am rather surprised to find that the treatment of women lawyers in China is actually relatively fair, and their status is relatively high.

Relatively speaking, the status of women lawyers is not as high in some culturally conservative countries such as Japan and Korea, due to tradition [culture]. Even in Europe, the US, Canada and Australia, women lawyers encounter, or are limited by, some unfair treatment in their careers, as we may be expected to look after our families more.

Women lawyers always have to explain why they spend so much time and energy taking care of their families, but cannot devote more time to their careers. In foreign countries, grandparents may not be around to help women lawyers with their children, and nannies are not as affordable, so women lawyers who have children may need to have a career break to become full-time mothers for some time. Even if they don’t become full-time mothers, they may have to juggle their work and not be fully committed.

This is why the IBA has dedicated a member to each section to ensure that there is a sufficiently equitable opportunity, not only in terms of gender representation in the hope of giving women more opportunities, but also to ensure that different countries are treated equally when it comes to allocating IBA resources.

In fact, the support and resources that women lawyers are able to receive in China are relatively enviable. First of all, there are a lot of women lawyers in China, especially in law schools or workplaces, where the proportion of women lawyers is at least half. On top of that, there are many women who become partners in law firms, sometimes even managing partners. So relatively speaking, the positions that women are able to gain are getting higher and higher.

I hope that as the IBA welcomes its second woman president, including the antitrust section, which for the first time has two women lawyers as co-chairs, we will also be able to strengthen our appeal and influence in this area so that women will have more equal access to work opportunities and more resources to support their professional development.

I think the world has changed and women should not only have a single role. We are fully capable to take on more professional tasks and contribute to society.

CBLJ: As China opens up its market and integrates into international competition, many overseas cross-over operations are appearing. What new trends will emerge in China’s antitrust regulations?

Hui: China’s Anti-Monopoly Law (AML) was established late in comparison to other countries and makes a lot of references to the legal progress of other regions, especially the EU.

China has its own legal system, so even if it has other references, it will still develop its own regulations and understanding.

In some cases, there may be a legislative gap in PRC law, or there are not many domestic cases to refer to. For example, most-favoured nation (MFN) is a provision that has been mentioned in the antitrust regulations in recent years, but there are not that many real cases. Therefore, when it comes to relevant issues, China will refer to extra-territorial experiences.

In turn, China’s AML has also had an important impact abroad. A few years ago, there was a precedent of an investigation and punishment by China for “jumping the gun”, before getting the regulatory nod on merger filings. Following this case, other jurisdictions such as the EU and Japan have taken reference from the Chinese decision, and so initiate investigations and impose penalties in similar cases.

Recently, the US has been investigating “non-compete clauses” in employment contracts, arguing that the inability of competitors to solicit each other’s employees, or the imposition of non-compete restrictions on some employees, may also be considered illegal from an antitrust perspective.

This is an avant-garde view. In fact, the US has had several years of experience with such enforcement, and antitrust agencies in other countries are considering implementing similar operations. China may also take note of this global trend in the coming days, which will affect our AML, including the regulation of labour contracts.

There is a constant interplay of laws from different jurisdictions, which is why we need to keep an eye on global trends.

CBLJ: What are the specific industries in China where problems in the area of anti-monopoly often arise?

Hui: I think it has something to do with the industry, but sometimes not. It is related because the AML often emphasises the interests of consumers and people’s livelihoods. If there are certain industries or products monopolised, it is likely that the whole industry will be a target for investigation.

Investigations into internet platforms, including those in recent years, have probably focused more on abuse of dominance, as these platforms have grown larger and stronger. In fact, it is not illegal to have a dominant position in the market, unless in the case of “choose one from two”, discriminatory treatment of consumers and discriminatory pricing of bid data, which may trigger an investigation. It just so happens that these situations have arisen more often for internet platforms in recent years, so you feel as though the industry has been targeted.

The automotive industry and pharmaceutical companies are other cases. You will find that at one time there were a lot of investigations into such companies due to price-fixing behaviour among competitors. Such behaviour has a significant impact on the livelihood of the country and the consumer, and thus regulators conducted many investigations into these industries.

However, strictly speaking, the AML is applicable to all industries. If a company or industry is complained against, an investigation will be initiated. It is just that these cases are rare and have not alerted the public, so the misconception that investigations are only initiated against certain industries exists.

CBLJ: This is the 15th year of China’s Anti-Monopoly Law; does the talent pool in this field match the market demand?

Hui: I think it’s a chicken and egg issue, requiring an effort from both sides.

If a company violates the AML, whether it is investigated or penalised, the impact on the company is far-reaching. Antitrust issues are often complex, so I personally think it may be necessary for partners of individual law firms to do more education on and communication with their clients, so that clients can understand the importance of antitrust compliance and proactively solicit legal help. Partners can start with some minor items, such as sales contracts and distributor agreements.

Only when there is a demand for it can we train young lawyers and allow them to enhance their practice in this area. If there’s not enough volume of business, it is impossible for law firms to foster or reserve talent. But sitting back and waiting for business to come in would be a bit reactive.

CBLJ: You started your career as an in-house counsel and worked your way up to law firm partner, with a switch back to a senior corporate role between 1999 and 2004. What are the main differences and what benefits can in-house experience bring to external counsel work?

Hui: From 1990 to 1992, I worked in a real estate company as an in-house counsel for two years. The requirements of a company for this position lie more in internal co-ordination and I must have spent 70% to 80% of my time dealing with this part of the business, such as legal issues and conflicts among different departments, and how to reduce risks. For those new regulations or more complicated legal issues, I relied more on external lawyers.