Golden hour bathes Rome’s sea of domes and bell towers, stretching toward the horizon in warm haze.
Wyatt Simpson, Unsplash

At the DRBF International Conference held in Rome on May 14–15, 2026, leading construction and dispute resolution practitioners convened to examine many aspects of dispute boards as a dispute avoidance and resolution process on various projects throughout the world. I was asked to be part of a panel debating the following proposition: are dispute boards (DBs) fit for purpose on mega projects?

Framed as a structured debate around the motion “Dispute Boards Are Unfit for Mega Projects,” the session brought together experienced stakeholders from across the project lifecycle to test the limits of dispute boards in today’s most complex infrastructure environments. Our session leader and moderator, Paul Taggart, a long-time construction executive and experienced neutral, had conceived the idea for the session. My fellow debater on the antagonist side, arguing that the standard DB process is not the best fit for purpose on Mega Projects, was Marianne Ramey, an experienced and highly-respected expert on delay and disruption. The protagonist side was ably represented by two highly-experienced and respected DB practioners, Simon Longley and Graham Easton. It was truly an honor (and a pleasure) to serve on such a distinguished panel. In general, the debate touched on all of the points set out below:

The Unique Challenge of Mega Projects

Mega projects—generally defined as those exceeding USD 1 billion—present a set of characteristics that distinguish them from conventional construction projects. These include:

  • Multiple interdependent contracts and interfaces
  • Significant political, economic, and environmental exposure
  • High public visibility and stakeholder scrutiny
  • Complex and often imbalanced risk allocation structures

These factors create conditions in which disputes are more likely, more complex, and higher in value. They also introduce risks that originate outside the project’s contractual framework, including governance failures and external political pressures.

The Intended Role of Dispute Boards

Dispute boards were designed to address project disputes through real-time, embedded engagement. When implemented effectively, they provide:

  • Early identification and resolution of issues
  • Ongoing project oversight, including site visits and regular meetings
  • Neutral, expert determination of disputes
  • Rapid decisions intended to maintain project momentum

Modern practice emphasizes that dispute boards serve primarily as dispute avoidance mechanisms, with much of their work focused on informal guidance rather than formal rulings.

Evidence shared during the session indicated that projects with actively engaged boards can, in some instances, proceed with few or no formal disputes, underscoring the preventative value of early and consistent involvement.

Structural Challenges at Mega Project Scale

Despite their benefits, the session highlighted several recurring challenges that raise questions about the scalability of dispute boards.

Governance vs. Contractual Resolution

Dispute boards operate at the contractual level, while many of the root causes of mega project underperformance arise at the governance level—including unrealistic assumptions, weak oversight, and fragmented accountability.

Timing and Entrenchment

By the time disputes reach formal consideration, critical project decisions are often already entrenched. This limits the ability of dispute boards to meaningfully influence underlying project outcomes.

Procedural Formalization

Large, high-value disputes tend to drive DB processes toward increased formality, including:

  • Greater involvement of legal counsel and technical experts
  • Expanded evidentiary submissions
  • Hearing formats resembling arbitration

This evolution can erode the efficiency and speed that distinguish dispute boards from traditional dispute resolution processes.

Limits of Informality

The informal nature of dispute boards—often a key advantage—can also present risks in complex disputes, including:

  • Perceived inconsistencies in decision-making
  • Concerns regarding procedural rigor
  • Increased likelihood of challenges and escalation to arbitration or litigation

These pressures can undermine confidence in the process, particularly where the stakes are exceptionally high.

Why Dispute Boards Still Matter

Notwithstanding these challenges, the Rome discussion reinforced that dispute boards remain a critical component of effective dispute management when properly deployed.

Their effectiveness is strongest where:

  • Boards are appointed early, ideally at project inception
  • Parties actively engage in ongoing, informal dialogue
  • Dispute avoidance is prioritized over formal adjudication
  • Boards are integrated into the broader project governance framework

Importantly, many criticisms of dispute boards reflect an outdated view of their role as purely reactive adjudicators. In practice, modern DBs are increasingly proactive, embedded participants in project delivery.

The Mega Project Paradox

A notable theme emerging from the debate is the possibility that dispute boards may, in some cases, manage symptoms rather than resolve underlying causes.

By resolving disputes sufficiently to allow projects to continue, dispute boards may inadvertently enable projects with deeper governance or structural issues to persist longer than they otherwise would.

While not universally accepted, this perspective highlights an important limitation: dispute boards cannot substitute for sound project design, governance, and decision-making.

What Should Project Stakeholders Do Now?

The discussion in Rome makes clear that the relevant question is no longer whether to use dispute boards—but how to deploy them effectively on mega projects.

Stakeholders should consider the following:

  • Start with governance, not dispute resolution. Establish clear decision-making authority, accountability structures, and risk ownership before implementing dispute mechanisms.
  • Appoint dispute boards early—and use them proactively. Early engagement allows boards to identify and address issues before they escalate into formal disputes.
  • Design dispute board procedures for scale. Mega projects may require hybrid approaches that preserve flexibility while incorporating appropriate procedural safeguards.
  • Align risk allocation with project realities. Overly aggressive or imbalanced risk transfer increases the likelihood of disputes that no mechanism can efficiently resolve.
  • Plan for escalation. Recognize that some disputes will move beyond the board process and ensure that escalation pathways are clear, efficient, and enforceable.

Conclusion

The Rome session underscored that dispute boards remain a valuable tool in the delivery of complex infrastructure projects. However, their effectiveness on mega projects depends less on their presence and more on how they are integrated within the broader project ecosystem. The parties should discuss the possibility of new and innovative DB structured such as the possible use of one DB member solely as a mediator.

For project owners, contractors, and counsel, the implication is clear: dispute boards should be deployed as part of a comprehensive strategy that prioritizes governance, realistic planning, and collaborative project execution.

When aligned with these fundamentals, dispute boards can play a meaningful role in navigating the complexity and risk inherent in today’s largest and most challenging projects.

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Cross-border wealth and estate planning have become increasingly important among high-net-worth families in the APAC region, particularly those with ties to Mainland China, Hong Kong, and the United States, as well as ties to offshore structures in the British Virgin Islands.  Often families will find themselves involved in complex interactions between civil law (China) and common law (Hong Kong, US and BVI) systems, differing inheritance rules, tax regimes, and enforcement challenges.

In view of this, on 16 April 2026, Seyfarth Shaw’s private wealth practice group hosted a focused seminar in Shanghai, in collaboration with the Hawaii Tax Institute, on the importance of estate planning.  The event took place at The Langham Hotel, Xintiandi, Shanghai and brought together more than 30 high-net-worth individuals, family office representatives, local service providers, bankers, and other professionals.

The seminar welcomed participants and speakers from Hong Kong (Ms. Ann Cooley and Mr. Jonathan Bok), the USA (Mr. Kurt Kawafuchi), and Shanghai (Ms. Yvonne Wang and Ms. Tina Geng), creating a rich, multinational dialogue on the complexities of managing and protecting wealth across borders, together with Seyfarth’s private wealth practitioners Wan Li and Karen Lam (Hong Kong) and Alan Yoshitake (Los Angeles).

Key Topics Explored

The speakers delivered practical and timely insights on several critical areas, including:

  • Cross-border estate planning – navigating the unique challenges faced by families with assets and connections in multiple jurisdictions.
  • Family office collaboration – how family offices can work effectively with advisors to align long-term goals and resolving disputes if arisen.
  • The importance of proactive estate planning – why high-net-worth families should act now rather than later to protect their legacy, especially with the implementation of the Common Reporting Standard (CRS) for the sharing of financial information between tax authorities of different countries.
  • Dispute prevention and resolution – strategies to minimize and manage family or beneficiary conflicts.
  • Private wealth investment considerations – current trends and considerations in structuring and managing investments in a volatile global environment.

The discussions were well-received, with attendees engaging actively and exchanging valuable perspectives throughout the day. The combination of international expertise and local market knowledge made the sessions particularly relevant for those with assets or interests spanning across Asia and the United States.

This event reflects Seyfarth Shaw’s ongoing commitment to supporting clients in the private wealth space with practical, cross-jurisdictional advice. As global tax rules, regulatory requirements, and family dynamics continue to evolve, such forums play an important role in helping families and their advisors stay ahead.

We would like to thank all speakers, our collaborating partners at the Hawaii Tax Institute, and every guest who joined us in Shanghai. We look forward to hosting more opportunities for meaningful dialogue in the future.

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Kyle Glenn, Unsplash

Wednesday, April 22, 2026
11:00 a.m. to 12:00 p.m. Eastern
10:00 a.m. to 11:00 a.m. Central
9:00 a.m. to 10:00 a.m. Mountain
8:00 a.m. to 9:00 a.m. Pacific
4:00 p.m. to 5:00 p.m. GMT

REGISTER HERE

About the Program

For global organizations, managing whistleblowing programs across multiple jurisdictions is increasingly complex. With diverging obligations under US, UK, and EU laws, even well-intentioned policies can fall short — exposing companies to enforcement risk, employee claims, and reputational harm.

Join Seyfarth Shaw LLP for a live, interactive webinar designed specifically for in-house counsel and compliance professionals responsible for overseeing global ethics, investigations, and reporting frameworks. Through real-world examples and practical insights, our international team will explore how to develop a coordinated, compliant, and trusted approach to whistleblowing across borders.

Key takeaways:

  • Interpret and operationalize the key differences among US, UK, and EU whistleblowing regimes and identify potential risks posed by each jurisdiction
  • Manage internal investigations that meet multi-jurisdictional standards
  • Understand the impact of new whistleblower incentives in the UK and further enhancements made to the US whistleblower regime.
  • Implement a unified framework that enhances transparency, employee confidence, and regulatory compliance

Speakers

Matthew Banham, Partner, Seyfarth Shaw LLP

Ada Dolph, Partner, Seyfarth Shaw LLP

Sofia Bargellini, Partner, Seyfarth Shaw LLP

Sara Thomas Arano, Associate, Seyfarth Shaw LLP

REGISTER HERE

If you have any questions, please contact Sadie Jay at sjay@seyfarth.com and reference this event.

Learn more about our False Claims, Whistleblower, and Internal Investigations and White Collar Defense and Investigations practice.To comply with State CLE Requirements, CLE forms requesting credit in IL or CA must be received before the end of the month in which the program took place. Credit will not be issued for forms received after such date. For all other jurisdictions forms must be submitted within 10 business days of the program taking place or we will not be able to process the request.

Our live programming is accredited for CLE in CA, IL, and NY (for both newly admitted and experienced).  Credit will be applied as requested, but cannot be guaranteed for TX, NJ, GA, NC and WA. The following jurisdictions may accept reciprocal credit with our accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, AR, CT, HI and ME. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used for self-application. CLE decisions are made by each local board, and can take up to 12 weeks to process. If you have questions about jurisdictions, please email CLE@seyfarth.com.

Please note that programming under 60 minutes of CLE content is not eligible for credit in GA. programs that are not open to the public are not eligible for credit in NC.

Dar Es Salaam Port Harbour
Ali Mkumbwa, Unsplash

Volatile U.S. tariff announcements continue to affect international supply chains for U.S. construction projects. Although recent litigation has centered on the scope of presidential tariff authority rather than construction‑specific disputes, these decisions carry important implications for how parties structure risk in their contracts. In May 2025, the U.S. Court of International Trade (CIT) struck down certain “Liberation Day” tariffs as exceeding presidential authority under IEEPA. A federal district court in Washington, D.C. likewise issued a preliminary injunction suspending related tariffs—though it later stayed its own order pending appeal. And the Supreme Court has agreed to review cases addressing the legal limits of IEEPA‑based tariffs.

While none of these developments arises from construction disputes, the themes they highlight—timing, statutory authority, and documentation—mirror the issues encountered when tariff conditions disrupt international procurement. The following strategies reflect practical steps U.S. project owners, contractors, and foreign suppliers can take to mitigate risk, drawing on drafting approaches now widely used across major construction forms, including—but not limited to—modified AIA agreements.

1. Strengthen Contract Provisions to Manage Tariff‑Driven Cost Escalation

Clarify Escalation and Cost‑Sharing Models

Many construction contracts include capped risk‑sharing structures to address material cost volatility. Contractors typically absorb cost increases up to a negotiated threshold—often 10–15%—after which owners share or assume the excess, subject to notice and documentation requirements. This remains one of the most balanced approaches to addressing tariff unpredictability.

Contracts also increasingly include pricing trigger ranges (commonly ±5–10%) requiring the parties to reassess pricing when material costs shift beyond agreed bands.

Use Precise, Timing‑Based Tariff Definitions

Construction contracts must also take into account tariff effective dates, specifying that tariff‑related relief applies only to tariffs enacted after the contract’s effective date.

Balance Escalation With Savings Provisions

Because some tariffs have been suspended or stayed pending appeal, well‑drafted contracts now include savings provisions requiring parties to share decreases in cost when tariff‑related prices fall. This symmetry promotes fairness and reduces disputes as markets stabilize.

2. Refine Risk Allocation Across Interlocking Contract Clauses

Tariff‑related risk is typically spread across multiple provisions—not just escalation clauses.

Guaranteed Maximum Price (GMP) Contingency Language

On GMP projects, contractors often negotiate the right to use contingency funds for tariff‑related cost increases. Owners typically limit such use to non‑contractor‑caused events. Clear drafting reduces later disagreement over whether contingency use was appropriate.

Buyout and Price‑Hold Requirements

Volatile tariff timing has led some subcontractors to resist long price‑hold periods. Contracts should address how design development, delayed notices to proceed, or owner‑driven sequencing changes affect suppliers’ pricing obligations.

Tailored Delay Provisions

Tariff‑driven procurement delays may be treated as excusable (but not necessarily compensable). Expressly identifying tariff‑related disruptions as potential causes of excusable delay promotes clarity without overreliance on force‑majeure provisions—which courts interpret narrowly.

3. Mitigate Procurement Exposure Through Early Planning and Supplier Engagement

International commentary notes that sudden tariff changes can significantly disrupt supply chains, especially in industries dependent on imported steel, aluminum, and specialty components. For construction projects with cross‑border material dependencies, the following steps can reduce exposure:

  • Early procurement or hedging to secure pricing before tariff changes.
  • Alternative or parallel sourcing to diversify suppliers in non‑impacted regions.
  • Structured supplier communication protocols to ensure early notice of tariff developments.
  • Rolling procurement schedules that help isolate tariff‑related impacts before full buyout.

4. Strengthen Documentation and Notice Practices

Tariff‑related litigation underscores the importance of detailed, contemporaneous records. Construction participants can adopt documentation discipline through:

  • Procurement records showing when quotes were obtained and how tariff timing affected pricing.
  • Supplier correspondence linking cost or schedule impacts to specific tariff enactments.
  • Documentation of mitigation efforts, including alternative sourcing and expedited procurement.
  • Separate cost‑tracking for tariff‑driven impacts versus general market inflation.

5. Incorporate Flexible Contractual Tools to Address Tariff Volatility

While tariffs may trigger broader cross‑border commercial disputes, construction stakeholders can still manage volatility by proactively incorporating flexible and well‑structured contractual tools, such as:

  • Predefined cost‑sharing thresholds tied to tariff‑driven cost increases.
  • Conditional pricing adjustments triggered by new or rescinded tariff actions.
  • Re‑pricing or termination rights in extreme circumstances.
  • Structured review procedures to evaluate tariff impacts collaboratively.

These tools help project participants respond to tariff changes constructively and maintain project momentum.

Conclusion

As courts continue evaluating the legality of recent U.S. tariff actions, construction stakeholders can seek to mitigate the risk of the politically weaponized tariffs through carefully coordinated contract drafting, proactive procurement planning, and robust documentation. By updating contract provisions to address tariff timing, escalation, savings, contingencies, and procurement delays, owners, contractors, and suppliers can manage politically driven tariff volatility with greater confidence and stability.

Lady Justice.
Tingey Injury Law Firm, Unsplash

We’ve previously written about the split among federal courts as to whether the agent of a non-U.S. country can waive that country’s immunity from suit under the U.S. Foreign Sovereign Immunities Act or “FSIA” (you can find our prior posts here and here). Briefly, in some U.S. federal courts (New York, Connecticut, or Vermont), if the plaintiff reasonably believed that the agent had authority to bind the foreign sovereign, i.e., “apparent authority,” that suffices to establish a waiver of immunity. In other U.S. federal courts (California, Texas, Virginia, Maryland, North Carolina, South Carolina, West Virginia, Louisiana, Mississippi, California, Arizona, Nevada, Idaho, Oregon, Washington, and Montana), the foreign sovereign only waives immunity if the agent had actual authority; apparent authority is not good enough.

The D.C. Circuit may soon weigh in on which side of the divide it falls. At the very least, it will likely provide guidance on the minimum pleading standard that plaintiffs in the District of Columbia need to meet to overcome a motion to dismiss regarding an agent’s authority. That holding, in turn, could be important for FSIA litigations going forward, as many lawsuits against foreign sovereigns are brought in the District in the Columbia.

The D.C. Circuit appeal arises out of a decision last fall by the U.S. District Court for the District of Columbia in a case involving the Republic of Iraq, Al Moumin v. Republic of Iraq.  The plaintiff alleged that Iraq’s then-Senior Vice President (and former Prime Minister) Nouri al-Maliki entered into a contract for the services for which she was owed a pension. The plaintiff contended that al-Maliki was authorized to act on behalf of Iraq, and that Iraq therefore engaged in “commercial activity” for which it is not immune from suit under the FSIA. Iraq contended, among other things, that the plaintiff failed in her complaint to allege that al-Maliki had the requisite authority to act on behalf of, or bind, Iraq.

The district court noted the split among courts on whether apparent or actual authority suffices. The court stated that, “at least at this point in the litigation,” it did not need to resolve the question. The district court reasoned that the plaintiff had alleged barely enough to meet the “actual authority” standard. The court noted that communications between al-Maliki and Iraq were not within plaintiff’s control, and it was plausible to think that “the Senior Vice President (and former Prime Minister) of Iraq had actual authority to bind Iraq.” The court stated that it would “stage proceedings” to allow the parties “to develop a more complete jurisdictional record before turning, if at all, to the merits.” In other words, the district court seems to intend to have the parties engage in discovery on the issue of al-Maliki’s authority before proceeding further with the case.

Iraq appealed the decision, filing its opening brief at the end of January. (The plaintiff also cross-appealed from the district court’s dismissal of a different part of her complaint).  Although interlocutory appeals are typically not permitted in U.S. federal courts, Iraq invoked the “collateral order” doctrine. Under that doctrine, litigants can immediately appeal an issue that: (1) the district court conclusively determined; (2) is important and completely separate from the merits of the case; and (3) would effectively be unreviewable following a final judgment in the action. (You can read more about the collateral order doctrine here). Iraq contends that the issue of its sovereign immunity falls within that doctrine. On the merits, Iraq argues, among other things, that the plaintiff failed to plead that al-Maliki was acting on behalf of Iraq (as opposed to on behalf of himself); that the plaintiff failed to adequately allege actual authority; and that the plaintiff failed to allege apparent authority or that apparent authority “is even a concept that exists under Iraqi agency law.” Iraq argues also that al-Maliki was merely a “deputy” to Iraq’s President and that the President of Iraq is, in turn, a largely ceremonial post. Thus, Iraq contends there was no basis for the district court to find even apparent authority. Iraq relies heavily on a 2021 decision from then-judge Ketanji Brown Jackson (now a U.S. Supreme Court justice), which we wrote about here. 

The plaintiff’s response brief is due at the end of February, and oral argument or a decision may be months away. Although the D.C. Circuit could side-step the actual authority versus apparent authority split like the district court did, it may at least provide additional guidance on FSIA plaintiffs’ pleading burden in future cases in the District of Columbia.

plexus net
Conny Schneider, Unsplash

Tuesday, November 11, 2025
6:00 p.m. to 7:30 p.m. Pacific
7:00 p.m. to 8:30 p.m. Mountain
8:00 p.m. to 9:30 p.m. Central
9:00 p.m. to 10:30 p.m. Eastern
10:00 a.m. to 11:30 a.m. Hong Kong (Wednesday, November 12th)

Register Here

About the Program

On May 21, 2025, Hong Kong’s Legislative Council passed the Stablecoins Bill, establishing a regulatory framework for stablecoins – cryptocurrencies whose value is tied to an external asset or commodity. The Stablecoin Ordinance took effect on August 1, 2025, positioning Hong Kong as a leading hub for digital finance.

In the United States, President Donald Trump signed the Guiding and Establishing National Innovation for US Stablecoins Act (GENIUS Act) into law on July 18, 2025. This landmark legislation will begin transforming the traditional paper currency payment system into a digital economy, reshaping how market participants buy and sell goods and services.

Designed for legal, compliance, and financial professionals, the program will cover the following key topics in the virtual currency/crypto industry:

  • Market Movements & Volatility
  • Regulatory & Policy Shifts
  • Institutional Adoption & ETFs
  • Technology & Blockchain Innovations
  • DeFi & Stablecoins

Speakers

Gordon Peery, Partner, Seyfarth Shaw LLP
Jing Li, Consultant, Seyfarth Shaw LLP
Elsa Zhang, Founder & CEO, DECA Capital
Arthur Lam, Co-Founder & CEO, Negawatt Utility Limited
Carrie Law, CEO & Director, WOW IMPACT GROUP

Register Here

If you have any questions, please contact Andrew Shah at ashah@seyfarth.com and reference this event.

Learn more about our derivatives practice. 

To request CLE credit please fill out the attendance verification form here. To comply with State CLE Requirements, CLE forms requesting credit in IL or CA must be received before the end of the month in which the program took place. Credit will not be issued for forms received after such date. For all other jurisdictions forms must be submitted within 10 business days of the program taking place or we will not be able to process the request.

Our live programming is accredited for CLE in CA, IL, and NY (for both newly admitted and experienced).  Credit will be applied as requested, but cannot be guaranteed for TX, NJ, GA, NC and WA. The following jurisdictions may accept reciprocal credit with our accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, AR, CT, HI and ME. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used for self-application. CLE decisions are made by each local board, and can take up to 12 weeks to process. If you have questions about jurisdictions, please email CLE@seyfarth.com.

Please note that programming under 60 minutes of CLE content is not eligible for credit in GA. programs that are not open to the public are not eligible for credit in NC.

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Nguyen Phan Nam Anh, Unsplash

One of the earliest issues to decide on a hospitality renovation abroad – whether it’s a branded resort in Europe, a hotel in Asia, or a mixed-use property in Latin America – is the selection of the appropriate project contracts.  The design and construction contracts in wide use in the US are sometimes appropriate for adaptation for use abroad.

This was the focus of our recent webinar, Adapting Standard Construction Forms for Use in Overseas Hospitality Renovations. Below, we outline several of the most significant considerations that arise when U.S. forms cross international borders.

Standard Forms in Different Jurisdictions

In the United States, forms from the American Institute of Architects (AIA) and ConsensusDocs are the most widely used for construction projects, supported by a deep body of case law with respect to the AIA suite of contract forms.

Outside the U.S., however, other industry forms are available.  Examples include:

  • FIDIC – rarely used on hospitality projects unless part of a large-scale mixed-use development.
  • Joint Contracts Tribunal (JCT) – the principal suite of construction contracts in the UK.
  • New Engineering Contract (NEC) – frequently employed for public sector projects.
  • Canadian Construction Documents Committee (CCDC) – consensus-based contracts common across Canada.

These forms reflect regional practices, risk allocations, and regulatory environments that may differ significantly from U.S. norms.

Areas of Divergence

Several key issues arise when adapting U.S. forms for international hospitality renovation projects:

  • Local Law Requirements: Employment rules, licensing laws, building codes, and anti-corruption statutes can impose obligations directly on owners. Financial security instruments also differ—bank guarantees are more common abroad than U.S.-style surety bonds.
  • Risk Allocation: The distribution of risk in U.S. forms does not always align with expectations overseas, where owners or contractors may bear greater responsibilities under local practice.
  • Dispute Resolution: Internationally, arbitration is the preferred forum for construction disputes. Institutions such as the ICC, LCIA, SIAC, and HKIAC are commonly chosen, as well as country-based arbitral tribunals, and awards are broadly enforceable under the New York Convention.

Conclusion

Standard forms such as AIA and ConsensusDocs provide a familiar starting point in the United States, but they do not automatically fit the needs of overseas hospitality projects. Understanding regional frameworks, legal requirements, and dispute resolution mechanisms is essential when renovating or developing properties abroad. Careful alignment of these elements can help ensure that projects proceed smoothly and that agreements are enforceable across borders.

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Conny Schneider, Unsplash

Asia-Pacific
Wednesday, September 3, 2025
9:00 a.m. to 10:30 a.m. Hong Kong and China Standard Time (UTC+8)
11:00 a.m. to 12:30 p.m. Australian Eastern Standard Time (UTC+10)

US
Tuesday, September 2, 2025
6:00 p.m. to 7:30 p.m. Pacific Time (UTC-7)

Please note: A recording of this presentation will be made available for those who cannot attend live.

Register Here

About the Program

This webinar will explain how historic new law will present business opportunities for market participants in two of the world’s largest economies.

On May 21, 2025, Hong Kong’s Legislative Council passed the Stablecoins Bill, establishing a regulatory framework for stablecoins – cryptocurrencies whose value is tied to an external asset or commodity. The Stablecoin Ordinance took effect on August 1, 2025, positioning Hong Kong as a leading hub for digital finance.

In the United States, President Donald Trump signed the Guiding and Establishing National Innovation for US Stablecoins Act (GENIUS Act) into law on July 18, 2025. This landmark legislation will begin transforming the traditional paper currency payment system into a digital economy, reshaping how market participants buy and sell goods and services.

Designed for legal, compliance, and financial professionals, the program will cover:

  • A primer on cryptocurrency with a focus on stablecoins, including new issuers, new uses, and the law that governs issuance and use;
  • Key features of the US GENIUS Act and the Hong Kong Stablecoin Ordinance;
  • Practical business implications for issuers, exchanges, institutional and retail investors, banks and competitors of banks, and the consumer; and
  • Emerging global trends, cross-border considerations, and predictions for future developments, along with guidance on how to prepare.

There will be an opportunity for questions following the presentation.

Speakers

Gordon Peery, Partner, Seyfarth Shaw LLP
Jing Li, Consultant, Seyfarth Shaw LLP

Register Here

If you have any questions, please contact JoAnna Barbero at jbarbero@seyfarth.com and reference this event.To comply with State CLE Requirements, CLE forms requesting credit in IL or CA must be received before the end of the month in which the program took place. Credit will not be issued for forms received after such date. For all other jurisdictions forms must be submitted within 10 business days of the program taking place or we will not be able to process the request.

Our live programming is accredited for CLE in CA, IL, and NY (for both newly admitted and experienced). Credit will be applied as requested, but cannot be guaranteed for TX, NJ, GA, NC and WA. The following jurisdictions may accept reciprocal credit with our accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, AR, CT, HI and ME. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used for self-application. CLE decisions are made by each local board, and can take up to 12 weeks to process. If you have questions about jurisdictions, please email CLE@seyfarth.com.

Please note that programming under 60 minutes of CLE content is not eligible for credit in GA. programs that are not open to the public are not eligible for credit in NC.

Morning Opera
Photoholgic, Unsplash

On 6 August 2025, the High Court of Australia (Australia’s most senior court) handed down the landmark decision in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, reshaping the risk environment for global employers who make redundancies in their businesses in Australia, i.e., eliminate certain positions or roles in the business, potentially resulting in the employees holding those roles losing their jobs. The decision has particular implications for businesses that rely on a mix of employees and contractors.

What was the case about?

Helensburgh Coal, operating the Metropolitan Coal Mine, made 22 employees redundant during a restructure prompted by a downturn in demand after COVID-19. However, the company continued to engage two contractor companies to provide conveyor belt maintenance services at the mine. The affected employees made unfair dismissal claims, arguing that they could have been redeployed to perform the work undertaken by the contractor workforce – that is, the contractor work could have been “in-sourced” to the redundant employees to allow them to continue in employment.

Under the Fair Work Act, an employee cannot bring an unfair dismissal claim if their employment ended as a result of “genuine redundancy”. One of the central questions for the Fair Work Commission (Australia’s labor relations tribunal) in determining whether a redundancy is a “genuine redundancy” is whether it would have been “reasonable in all the circumstances for the person to be redeployed” within the employer’s business or the business of an associated entity. There has been a general understanding that this concept is limited to assessing whether there are any vacant positions available – without the need to look at whether operations could be restructured to allow the redundant employees to continue working.

The question was therefore whether Helensburgh Coal needed to consider replacing the contractor workforce with the redundant employees, or whether it only needed to look at whether there were any vacant positions for the redundant employees.

What did the High Court decide?

The High Court decided that, when determining what was “reasonable in all the circumstances”, the Fair Work Commission can consider whether the employer could have made changes to its enterprise to create or make available a position for a redundant employee. This means that, contrary to the previously commonly understood position, “redeployment” isn’t limited only to vacant positions – whether a redeployment would have been reasonable depends, at least in part, on whether it would have been reasonable for the employer to reorganise its business to make a position available.

What does the decision mean for international employers in Australia?

The decision does not mean there is an obligation to replace contractors with redundant employees in every situation. But, we can expect that employees and unions will press employers to look more closely at whether they could reorganise their business to find positions for redundant employees – especially where the employer is using contractors or third parties to provide labor on an ongoing basis and the work being done by those workers could be done by employees (even if they need to be retrained).

When going through a redundancy process, to minimise legal risk, employers with operations in Australia will need to:

  1. look at the way in which they structure their overall business operations – including parts of the business where ongoing contractors are used – when considering whether redundant employees could be redeployed. It is not enough just to look at whether there are any vacant positions available;
  2. consider reasonable changes that they might be able to make to their operations so that the redundant employees could be redeployed – including whether contractors or labor hire workers could be replaced by the redundant employees;
  3. if the employer decides not to make a change to the way in which it operates its business, make sure the reasons for doing so are commercial and sensible, and document them;
  4. remember that – in most situations – employers will need to consult with the affected employees as part of the redundancy process. Engaging with employees and unions during the consultation process can help flush out some of these issues. Employers will need to be open to considering proposals put by employees and their unions.
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Andrew Jephson, Unsplash

On 1 January 2024, Foreign State Immunity Law of The People’s Republic of China (“FSIL”) came into effect, changing and clarifying the position of sovereign immunity under the laws of Hong Kong and mainland China.

Before the FSIL, the sovereign immunity position under the laws of China was that a state and its property enjoyed absolute immunity in foreign courts, including immunity from jurisdiction and from execution. The courts in China had no jurisdiction over a foreign state or government, nor had they ever entertained any case in which a foreign state or government was sued as a defendant or any claim involving the property of any foreign state or government, irrespective of the nature or purpose of the relevant act or use of the property.

Now, the FSIL introduces key statutory exemptions from the immunity enjoyed by foreign states in PRC civil proceedings, many of which are similar to exemptions found in the United States Foreign Sovereign Immunities Act (which you can read more about here). 

Exceptions to immunity from PRC court proceedings

(i)   Commercial activities exemption — a foreign state will not enjoy immunity from suit before the PRC courts in respect of proceedings arising from “commercial activities” provided that those commercial activities (i) are conducted with an organisation or individual of any other state (which would include the PRC) and (ii) either take place within the territory of the PRC or (if not) produce “direct effect” in the territory of the PRC.

(ii)  Express waiver (immunity from suit) — a foreign state will not enjoy immunity from suit where it has expressly submitted in writing to the jurisdiction of the courts of the PRC with respect to a particular matter or case, for example through a contract or treaty. It is also possible for a foreign state to implicitly waive immunity from suit, for example if it brings proceedings on the substance of a dispute.

(iii) Arbitration-related proceedings in commercial transactions — where an arbitration relates to a dispute arising out of a commercial activity between a foreign state and an organisation or an individual of any other state (including the PRC), a foreign state will not be able to claim immunity from suit in related court proceedings concerning the validity of the arbitration agreement, the recognition and enforcement of the award, the setting aside of the award and other matters related to arbitration prescribed by law to be reviewed by the court.  

Exceptions to immunity from execution

(iv) Property for commercial use — property located in the PRC that is being used for “commercial activities” and is related to a PRC judgment will no longer be immune from judicial enforcement in the PRC.

(v)  Express waiver (immunity from execution) — a foreign state will not enjoy immunity from execution where it expressly waives such immunity in writing, including by treaty or contract.

The evolution of the sovereign immunity position in Hong Kong is a bit complicated. Before July 1, 1997, Hong Kong courts applied a restrictive state immunity doctrine. However, since the resumption of Chinese sovereignty on July 1, 1997, Article 19, Paragraph 3 of the Basic Law has excluded matters of foreign affairs and defense from the jurisdiction of the municipal courts of Hong Kong.

As established by the leading case Democratic Republic of the Congo v. FG Hemisphere Associates [2011] HKCFA 41, Hong Kong is legally bound to follow the rules and policies of mainland China on foreign state immunity. In the Congo case, the majority followed an interpretation issued by the Standing Committee of the National People’s Congress upon the request of the court to the effect that the doctrine of absolute state immunity, as then adopted by mainland China, was to be applied in Hong Kong.

In an announcement dated 4 September 2023, the Chinese authorities confirmed the Hong Kong SAR should follow the rules and policies in the FSIL. This means Hong Kong will have to shift from an absolute to a restrictive approach in applying foreign state immunity, opening up the possibility of suing foreign states for their commercial activities in Hong Kong.

Another welcome change in Hong Kong is the possibility of express contractual waivers, which were previously ineffective, as any waiver of immunity is required to be made “in the face of the court” at the time when the court was asked to exercise jurisdiction, as stated in the Congo case. 

Since foreign states are not immune from suit in respect of arbitration-related court proceedings that arise out of commercial activities or investment disputes, creditors will be able to enforce awards from commercial or investment arbitrations against commercial assets of foreign states in both mainland China and Hong Kong by applying to recognise and register the awards as judgments, provided that the awards arise out of the foreign state’s commercial activities.

Last but not least, it is important to note that Hong Kong law distinguishes the foreign state immunity regime which specifically applies to foreign states and their entities, from “crown immunity” under which the Chinese Government and its controlled institutions are immune from the jurisdiction of the Hong Kong courts and execution against their assets. In determining whether a Chinese state-owned enterprise (SOE) is entitled to crown immunity, a “control test” will be applied to ascertain the nature and degree of control that could be exercised by the Chinese authorities, as confirmed in the case TNB Fuel Services SDN BHD v. China National Coal Group Corporation [2017] HKCFI 1016. Accordingly, Chinese commercial state-owned enterprises (SOEs) generally do not enjoy crown immunity in Hong Kong, much like most foreign SOEs.