ISSUE 5.12
Financial crisis – the legal context Firms respond with cautious optimism 金融危机：律所保持谨慎乐观并积极应对
PRC firms’ overseas offices
Client-driven decision, results-driven business 律所海外分支：伴随中国企业的国际化发展而壮大
Anti-monopoly law debate
First ruling marks ‘mile one’ in antitrust practice 反垄断法：英博啤酒并购案通过审核引起业界广泛关注
ALB Fast
CHINA
领 先 之 星
2008年度发展最迅速的十家律师事务所 Rising stars with the fastest revenue growth rate n DEALS ROUNDUP n LATERAL MOVES n IN-HOUSE VIEW n Regulatory UPDATES n UK, US REPORTS n LATEST NEWS
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Editorial >>
The sweet smell of success
I
s your firm a success? How do we measure success? These were the questions former Allen & Overy senior partner Guy Beringer posed when making his acceptance speech for a prestigious lifetime achievement award recently. Beringer spoke of the dangers of firms defining success in a way “which relied largely on them comparing themselves financially to others, which always seemed as a measure doomed to failure”. He drew attention to the opportunity the legal profession now had “to set new standards of leadership and governance that others will follow”. To be fair, it is not necessarily always firms that are the most preoccupied with financial gamesmanship. Yearly revenue results make a great story and the media are always on hand to whip up the rivalry. And if a firm has had a good revenue result, it is not surprising that managing partners will take the credit. Unfortunately it is less easy to gauge the achievements of the profession as a whole, particularly those achievements of a less tangible nature. In China, the legal profession can take credit for contributing to one such achievement – the continuing evolution of the legal system and, no less, the integration of Chinese enterprises into mainstream global business. An observation made time and time again by domestic and international lawyers alike is the improvement which successive decades have seen. The necessary legal framework for business, such as modern IP laws, has been established. The enforcement process is more reliable and transparent. There is an increased awareness of common law principles. The system is not perfect. There is some distance yet to be travelled. But this is a journey which could not have been undertaken without the contribution of China’s legal professional community. The motivating factor is a desire to facilitate business, not altruism. But, if the result is an improved legal system across the board, it is an achievement which should be viewed with genuine pride. That’s success, by any measure.
The motivating factor is facilitating business, not altruism. But, if the result is an improved legal system across the board, it is an achievement which should be viewed with genuine pride. That’s success, by any measure
2
IN THE FIRST PERSON “People believe that even in quiet
times firms need to enlist good lawyers in large numbers”
Wang Weidong, executive partner of Grandall Beijing office, on the global financial crisis (p13)
“To open an office overseas … a firm must be structured as a true partnership with sophisticated management to be able to make such a huge investment and commitment” Gong Xiaohang, Duan & Duan’s chief director, on expanding internationally (p38)
“External counsel are increasingly being instructed to help in-house departments overcome gaps in capacity and expertise in high-stakes transactions” Zhang Wei, head of ICBC’s legal department, on globalisation of Chinese companies (p46)
CHINA
ISSUE 5.12
CONTENTS >>
contents
12
ALB Fast
28
ALB China issue 5.12
10
COVER STORY 28 ALB FAST 10 As the year draws to a close, ALB China reveals its summary of the top 10 performers of 2008 by percentage revenue and headcount growth
ANALYSIS 10 The Hong Kong/mainland gap: narrowing The division between the legal markets in the mainland and Hong Kong is increasingly blurred, and opportunities for not only Hong Kong firms but also their mainland counterparts abound 12 Anti-monopoly: First ruling sheds light on future of M&A MOFCOM’s green light for InBev’s US$52bn acquisition of Anheuser-Busch raises as many questions as answers as to how the government will approach antitrust and competition law 13 Financial crisis: Law firms respond China hasn’t been too bruised by the global credit crisis, but all firms with a focus on crossborder transactional work are already feeling the pinch. ALB China analyses the cautiously optimistic sentiment in the current market
FEATURES 38 International expansion A number of firms have been pioneers in establishing presences on foreign turf. Although most of the overseas offices are yet to reach profitability, managing partners tell ALB China that the move is strategically crucial
4
42 Canadian law firms: The quest for resources A lack of Canadian law firms on the ground does not mean the firms are not doing business in the region – they are riding high on the wave of outbound investment from China to Canada in the natural resource sector 46 Post event coverage: ALB In-House Legal Summit Beijing 2008 A summary of issues discussed by in-house lawyers at the annual gathering
REGULARS 6 • • • • • • • • • • •
NEWS Jade & Fountain adds two partners Top IP judge lands at Fangda Partners Kirkland hires partner from Jun He The Across-Taiwan-Strait Legal Service Center is established Ashurst boosts China presence with JV RMB4trn stimulus package delivers good news for firms Latham promotes 20 associates US firms attracted to China’s IT market Orrick lays off Asian lawyers Lei Jie seals Sino-Ocean Land’s takeover deals Beijing Xin He advises on Jiangxi copper bond issuance
42 15 UK report 17 US report 48 Sign off
Updates 18 Shanghai Llinks Law Offices 19 Insurance Grandall Legal Group 20 International tax Azure Tax 21 Singapore Loo & Partners 22 Regulatory Paul Weiss
PROFILES 24 Lifang & Partners 27 Thomson Reuters Legal 41 Blancpain
ALB ASIAN LEGAL BUSINESS
ISSUE 5.12
Providing advice on the laws you need... ...from the places you are.
Conyers Dill & Pearman The Offshore Law Firm
Corporate, Company & Commercial Commercial Litigation Trust & Private Client Insurance & Reinsurance Commercial Litigation & Arbitration Complex Corporate Trust Structures Investment Funds Insurance & Reinsurance Disputes Private Trust Companies Shipping & Aircraft (Finance & Registry) Insolvency & Restructuring Estate Planning Securitisation & Structured Finance For general enquiries Telephone: +852 2524 7106 E-mail: hongkong@conyersdillandpearman.com
www.conyersdillandpearman.com Anguilla Bermuda British Virgin Islands Cayman Islands Mauritius Dubai Hong Kong London Moscow Singapore
NEWS | deals >>
deals in brief
| CHINA | ►► Sino-Ocean Land – real estate acquisition US$175m
►► Jiangxi Copper Bond Issue US$995m
Firm: Beijing Xin He Lead lawyers: Zuo Yi, Wen Guanyin Client: Jiangxi Copper
Firm: Lei Jie Lead lawyer: He Jie Client: Sino-Ocean Land Firm: Paul Hastings Client: Sino-Ocean Land
| CHINA |
Firm: King & Wood Client: China International Capital
He Jie, Lei Jie
• Hong Kong listed Sino-Ocean Land has announced its conditional acquisition of entire equity interest in Dalian Tsanghao Real Estate Company and Grand More Group at an aggregate consideration of US$175m • Beijing-based Lei Jie advised Sino-Ocean Land in respect of PRC law in this transaction. Lei Jie has represented the company in a number of other large transactions including the company’s US$1.5bn IPO in Hong Kong
• Jiangxi Copper Company issued convertible corporate bonds with detachable warrants on the Shanghai Stock Exchange. Beijing Xin He has been a long-standing external legal counsel to Jiangxi Copper • King & Wood acted as legal counsel to the underwriters led by China International Capital Corporation in this issuance • Aggregate amount issued bonds is RMB6.8bn and the expected total amount of the proceeds raised by the exercise of all related warrants will not exceed that amount
| CHINA | ►► Intel Capital – Viewhigh investment Firm: Hanyi Lead lawyer: Richard Xu Client: Intel Capital
6
• Intel Capital has signed an agreement to invest in Viewhigh, a leading software product and service provider for China’s healthcare industry • As the Chinese counsel to Intel, the Han Yi team has provided a series of legal services for this transaction, including legal due diligence review and report, amendment of all transaction documents and attention to all closing details • During the past few years, Han Yi lawyers have represented and acted as the Chinese counsel to Intel Capital in connection with Intel’s various China investment initiatives and closed, among others, the Viewhigh deal and the equity investment transaction involving Zhejiang Supcon Technology in 2007
| CHINA | ►► Guangdong Meiya – GuangHong AMC share swap Firm: Guangda Lead lawyer: Pete Zhang Client: Guangdong Meiya • Shenzhen-listed Guangdong Meiya Group has announced its plan to issue 187,274,458 shares to GuangHong Assets Management
Co through private placement • In return, GuangHong Assets Management Pete Zhang, will divest a Guangda 100% stake in GuangHong Foods Group, a 85.78% stake in a Huizhou-based agropastoral company and a 100% stake in a Guangdong-based book store company • After the transaction, GuangHong Assets Management will hold a 52.24% stake in the Company
| CHINA | ►► GChina Everbright Ltd – ALAM stake acquisition Firm: Bryan Cave Lead lawyers: Chris Lause, Evan Chuck Client: ALAM • Deal involved China Everbright Ltd’s acquisition of a 5% controlling interest in private equity company ALAM • Acquisition gives China Everbright addition of ALAM which posted US$100bn of assets last year; target is now positioned to take advantage of opportunities ISSUE 5.12
NEWS | deals >>
►► YOUR MONTH AT A GLANCE
arising from economic uncertainty, said firm
| CHINA | ►► GNPEA – Qiaolian Group investment US$70m Firm: Zhong Lun Lead lawyers: Anthony Zhao, Luke Zhang Client: NPEA • Wuxi Qiaolian Group, manufacturer of wind power equipment and metallurgical machinery, closed investment from five investors, coled by Avenue and NPEA • The Zhong Lun team provided crossborder legal services
| CHINA/GREECE | ►► COSCO Piraeus pier development US$6.6bn Firm: Orrick, Herrington & Sutcliffe Lead lawyer: Christopher Stephens Client: COSCO Pacific
Firm
Jurisdiction
Deal name
Value(US$m)
Baker & McKenzie
China/ Turkemenistan
Central Asia – China pipeline project
Bryan Cave
China
China Everbright Ltd– ALAM acquisition
Clifford Chance
China/ Turkemenistan
Central Asia – China pipeline project
1,100 Undisc. 1,100
Hong Kong
Natural Beauty Bio-Technology privatisation
DLA Piper
Hong Kong/Japan
Rain Fall film financing
307
DSL Lawyers
Hong Kong
Speymill Macau Property Company – AIA Tower purchase
F Zimmern & Co
Hong Kong/Japan
Rain Fall film financing
Freshfields Bruckhaus Deringer
China/ Turkemenistan
Central Asia – China pipeline project
Fried, Frank (in assoc with Huen Wong & Co)
China/Hong Kong
Chow Tai Fook Group – Peace Mark acquisition
Guangda
China
Guangdong Meiya – Guanghong AMC share swap
Undisc.
Undisc.
Undisc. 154 Undisc. 1,100
Hanyi
China
Intel Capital – Viewhigh investment
JSM
China
Dah Chong Hong Holdings – Silver Precious International acquisition
65
18
Deal type Energy & resources M&A Energy & resources Equity market Finance M&A Finance Energy & Resources M&A Restructuring/ private placement Venture capital M&A
King & Wood
China
Jiangxi Copper bond issue
995
Debt market
Lei Jie
China
Sino-Ocean Land – Dalian Tsanghao Real Estate and Grand More Group acquisition
175
M&A
Orrick, Herrington & Sutcliffe
China/Greece
COSCO Piraeus pier development
Paul Hastings
China
Sino-Ocean Land’s – Dalian Tsanghao Real Estate and Grand More Group acquisition
175
Skadden
Hong Kong/Japan
Sumitomo Mitsui Banking Corporation – Bank of East Asia business alliance
Undisc.
6,600
Shipping M&A
Hong Kong
Natural Beauty Bio-Technology privatisation
307
Equity market
Stephenson Harwood & Lo
Hong Kong
Speymill Macau Property Company – AIA Tower purchase
154
M&A
Vasco Da Gama Offices
Hong Kong/Japan
Rain Fall film financing
Xin He
China
Jiangxi Copper bond issue
Zhong Lun
China
NPEA – Qiaolian Group investment
Undisc.
Finance
995
Debt market
70
Equity market
Does your firm’s deal information appear in this table? Please contact
Authority to develop and operate Piers 2 & 3 at port of Piraeus in Greece • Signing of concession Christopher agreement at Stephens, official ceremony Orrick Herrington in Greek Prime & Sutcliffe Minister‘s office and was witnessed by Greece PM and President Hu Jintao of China on 25 November 2008 in Athens
alb@keymedia.com.au
61 2 8437 4700
“As the most globally successful Chinese companies continue to focus on strategic growth, they will continue to find important investment opportunities inside and outside China to further secure their future as global leaders in several important segments” Christopher Stephens, Orrick, Herrington & Sutcliffe
• Global container terminal operator COSCO Pacific secured concession agreement with Piraeus Port www.legalbusinessonline.com
7
NEWS | deals >>
Firm: Stephenson Harwood & Lo Lead lawyer: Pamela Chu Client: Speymill Macau Property Company
Pamela Chu,
Stephenson • Speymill Macau Harwood & Lo Property Company plc purchased AIA Tower in Macau, signed and completed in September
• The deal involved the acquisition of the offshore and Macanese companies that own AIA Tower, plus the refinancing of an existing mortgage by arranging a new loan with a local bank • According to the law firm, the professional relationship between SHL and client Speymill Macau goes back more than 20 years, with deals ranging from company incorporations in Europe to largescale property transactions in Asia
“As these [energy] deals are strategically important to China, we will continue to see not only substantial equity investments from Chinese investors in the energy sector of these countries [central Asia], but also substantial financing from PRC banks for these projects” Barry Cheng, Baker & McKenzie
| CHINA/TURKMENISTAN | ►► Central Asia – China pipeline project US$1.1bn Firm: Baker & McKenzie Lead lawyer: Barry Cheng Client: Borrowers Firm: Clifford Chance Barry Cheng, Lead lawyer: Baker & McKenzie Geraint Hughes Client: China Development Bank Firm: Freshfields Bruckhaus Deringer Lead lawyer: Robert Lonergan Client: Uzbek sponsor • Development of 1,818km pipeline to deliver 30 billion cubic metres of natural gas from Central Asia to China • China National Petroleum Corporation also signed agreements with Uzbekistan and Kazakhstan giving 50% stakes in deal
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| HONG KONG | ►► Natural Beauty BioTechnology privatisation US$307m
| hong kong | ►► Speymill Macau Property Company – AIA Tower purchase US$154m
Firm: Skadden Lead lawyers: David Yun, Jamii Quoc, Nicholas Norris Client: Citigroup
Firm: DSL Lawyers Lead lawyers: Carlos D Simões, David Silva Lopes
Firm: Clifford Chance Client: CVC Asia Pacific
Client: Speymill Macau Property Company
• First takeover in Hong Kong by a private equity firm since the recent global financial crisis • CVC Asia Pacific privatised Natural Beauty Bio-Technology Limited through scheme of arrangement. Consideration offered is an alternative between cash and cash plus ordinary and preference shares in a special purpose vehicle of CVC Asia Pacific (the holding company of NBBL after completion of the privatisation)
| china/hong kong | ►► Chow Tai Fook Group – Peace Mark acquisition US$65m Firm: Fried, Frank, Harris, Shriver & Jacobson (in association with Huen Wong & Co) Joseph Lee, Lead lawyers: Fried Frank Joseph Lee, Richard Steinwurtzel, William Yoo Client: Chow Tai Fook Group • Chow Tai Fook Group acquired Peace
“This complex [Chow Tai Fook Group – Peace Mark] cross-border restructuring involves a large-scale retail network which requires us to act expediently in order to preserve its value. It is also the first restructuring deal of a Hong Kong-listed company in provisional liquidation with substantial business and assets in China since the start of the economic downturn. Given the challenging landscape we currently face, we expect to see more transactions of this kind in the near future” Joseph Lee, Fried Frank ISSUE 5.12
NEWS | deals >>
Mark’s luxury watch retail network • Peace Mark is in provisional liquidation and has undergone debt restructuring • Reportedly first and largest cross-border corporate rescue and restructuring in China/HK announced and completed since financial turmoil
| HONG KONG /JAPAN | ►► Rain Fall film financing Firm: F Zimmern & Co Client: Distribution Workshop Firm: Vasco Da Gama Offices Lead lawyers: Michael Leow, Suresh Khilani, Elaine Cotter Client: Rain Fall Limited Liability Partnership Firm: DLA Piper Client: Standard Chartered Bank • Deal involves financing of film ‘Rain Fall’, one of the first Japanese film productions to use Western-style financing including a completion bond
• Standard Chartered Bank HK offered a discounting facility and a gap financing facility for the film’s production
“While other countries in Asia have used similar forms of international film financing in the past, this is one of the first for Japanese movies. Our team helped Standard Chartered Bank Hong Kong successfully accomplish a sophisticated Western financing method, and ensured it was adapted to local law and industry standards” Michael Leow, Vasco Da Gama Offices
| HK/JAPAN | ►► Sumitomo Mitsui Banking Corporation – Bank of East Asia business alliance Firm: Skadden Lead lawyers: Mitsuhiro Kamiya, Nicholas Norris Client: Sumitomo Mitsui Banking Corporation • Deal involves business alliance between Sumitomo Mitsui Banking Corporation and Bank of East Asia • The agreement sets out framework for both parties’ co-development of business potential in mainland China, Hong Kong, Japan and other countries where both operate
| JAPAN/INDIA | ►► NTT DOCOMO – Tata Teleservices investment US$2.7bn Firm: Khaitan & Co Lead lawyer: Upendra Joshi Client: NTT DoCoMo Inc Firm: Skadden Upendra Joshi, Khaitan & Co Arps Lead lawyers: Keigo Yamaguchi, Michael Mies, Nobuhisa Ishizuka Client: NTT DoCoMo Inc
the foreign investment and corporate laws
| JAPAN | ►► Siemens AG – Fujitsu Siemens Computers US$565m Firm: Freshfields Bruckhaus Deringer Lead lawyers: Christopher Bown, David Taylor, David Aitman Client: Siemens AG • Siemens AG sold 50% share in JV with Fujitsu Siemens Computers to Fujitsu Ltd. The purchase price is approx €450m • Freshfields advises Siemens on a regular basis in Germany as well as in relation to a wide range of international projects taking place in various jurisdictions including Spain, Italy, India, Russia and France
| Philippines/SINGAPORE | ►► Santa Rita power project refinancing US$544m Firm: Paul Hastings Janofsky & Walker Lead lawyer: Patricia Tan Openshaw Client: First Gas Firm: Shearman & Sterling Lead lawyer: Bill McCormack Client: Lead arrangers
Firm: AZB & Partners Lead lawyers: Abhijit Joshi, Zia Mody Client: Tata Teleservices
• Deal involves refinancing of 1,000MW gas-fired Santa Rita power project in the Philippines
• NTT DOCOMO will acquire 26% Tata Teleservices’ common shares
• Deal signed on 11 November 2008 and funded on 14 November 2008. Funding covered commercial tranche and an uncovered commercial tranche representing US$500m of new financing, and HERMES covered tranche of US$44m from the original project debt in 1997
• In addition, DOCOMO expects to acquire up to 20% of shares in Tata Teleservices Maharashtra through joint tender offer with Tata Sons • Deal marks entry of the Japanese giant into world’s fastest-growing telecom market, which reportedly has three times more subscribers than Japan • Skadden has had a longstanding relationship with NTT DOCOMO and has advised on several strategic investments in recent years
• Eight mandated lead arrangers: BTMU, Calyon, HVB Unicredit, ING, KfW, Maybank, SocGen and Standard Chartered
• Khaitan & Co advised on investment structures and Indian law including aspects of www.legalbusinessonline.com
9
NEWS | analysis >>
Analysis
Hong Kong firms see mainland as trump card
Herbert Smith corporate partner in Hong Kong, Andrew Tortoishell. Hong Kong partner with Clifford Chance, Andrew Whan, agreed. “Some of the transactions involving Chinese companies are becoming more sophisticated and complex, and require greater input from external legal advisors,” said Whan. “We see considerable growth in mainland China-related work, and our Hong Kong office has definitely been a beneficiary of that work.” Despite the current pall hanging over Hong Kong’s capital markets, Clifford Chance is still acting on 11 Hong Kong IPOs, all of which involve businesses in China.
M&A to drive future growth
Increasingly, the divide between the burgeoning mainland legal system and Hong Kong’s own common law jurisdiction is, at a practical level, becoming blurred. ALB China asks Hong Kong lawyers whether this trend is enhancing their leading position in the industry or bringing more competition from their mainland counterparts
W
ant Want China’s Hong Kong IPO and Coca-Cola’s proposed takeover of Huiyuan Juice are typical transactions that law firms in Hong Kong are advising on these days. In March this year, Want Want China, a Taiwanese company incorporated in the Cayman Islands whose dominant geographical market segment is in the mainland, launched its IPO in Hong Kong. The US$1.4bn listing is the largest food & beverage sector equity offering in Asia to date and the deal’s legal advisors secured a position among the finalists for the Equity Market Deal of the Year at the 2008 ALB Hong Kong Law Awards. The increasingly close economic ties between Hong Kong and the mainland have made it more challenging for ALB
10
to assign any given deal to just one of its five regional Law Awards events. This is especially the case for China and Hong Kong. This year, therefore, the majority of the finalists in the Hong Kong Law Awards deal categories have a major mainland component, involving either a significant underlying Chinese business or a large Chinese company. Experienced corporate lawyers in Hong Kong, particularly those working with international firms, have witnessed the convergence between their Hong Kong and mainland China offices for a number of years. They see it as a natural development and expect to benefit. “In the past decade, most of the work we have done in Hong Kong’s corporate group has a China element in some way or other, and 90% of our work related to China has an offshore element,” said
The past decade has seen mainland businesses and companies dominating the league tables for Hong Kong IPOs and listings. Corporate groups of international firms in Hong Kong, who have traditionally been busy with IPO work, are expecting mainland-related M&A transactions to become a main driver for future revenue growth. An interesting phenomenon in today’s Hong Kong legal market is that more strategic investors are investing into or buying stakes in Chinese businesses listed on the Hong Kong exchange. The most recent example of this new trend is Coca-Cola’s bid for Huiyuan Juice, in which Coca-Cola has proposed to buy the Hong Kong-listed company for US$2.4bn. “As more Chinese companies are listed in Hong Kong, over time it creates more M&A work for Hong Kong lawyers,” said Tortoishell. “The underlying assets of these companies are in China, but most of the M&A legal work is done in Hong Kong.” Herbert Smith has represented clients in many M&A transactions involving Hong Kong-listed Chinese companies, such as the Coca-Cola/ Huiyuan Juice deal and Gome’s acquisition of China Paradise. Private equity investment into Hong Kong-listed Chinese businesses is another trend that is still developing but Hong Kong corporate lawyers are expecting it to take off in the near future. “It can be difficult for private equity funds to invest into China ISSUE 5.12
NEWS | analysis >>
directly due to regulatory issues, but it’s easy for them to take over or make big investment into Chinese businesses that are listed in Hong Kong,” said Tortoishell.
Competition from mainland counterparts?
If the amount of mainland business in Hong Kong’s economy continues to grow, will it mean that PRC law firms will be elevated to more important positions and take on more work that has been done by Hong Kong firms in the past? The lawyers ALB China talked to all agreed that as the legal and regulatory environment in mainland China becomes more sophisticated, the role of PRC legal counsel in cross-border transactions is becoming increasingly important. In the case of Coca-Cola/ Huiyuan, Beijing-based Dacheng has been instructed by the acquirer to handle the antitrust filings, which are critical to the success of the deal. The increasing strength of the PRC counterparts in deals is mostly good news for international law firms in Hong Kong. “We always see China legal issues to be best advised on by PRC firms for their expertise, and the growing need for PRC legal advisors to come into the structuring of a transaction is inevitable. But it doesn’t mean that if PRC firms are stronger and more involved in a deal we will
have less share of the profit of the deal,” said Bernita Yu of Slaughter and May. Given that most of the cross-border deals are structured through offshore vehicles and involve common law jurisdictions, international counsel in Hong Kong will maintain a clear lead in advising on these deals. “In most high-profile cross-border deals, international expertise and Hong Kong legal advice are required. Many of the Chinese companies involved are listed in Hong Kong and a large volume of Hong Kong regulatory applications need to be done for the deals,” said Yu. “Although some deals are governed by PRC law, they still involve overseas parties and run in international ways, such as documentation, so international and Hong Kong counsel need to be instructed.” Currently, five leading PRC firms, including King & Wood, Jun He and Grandall, have established offices in Hong Kong and Zhong Lun is planning to expand into Hong Kong in the near future. These Hong Kong offices are now registered as foreign law firms in Hong Kong and can only advise on PRC legal issues. The question is, when these firms become qualified to hire Hong Kong lawyers and advise on Hong Kong law, will it mark the start of a new era in the Hong Kong legal service market? ALB
►► Mainland deals with a major Hong Kong component Transaction China South Locomotive Hong Kong IPO
Equity market
M&A
Value (US$m)
Legal advisors involved*
533
Grandall, Baker & McKenzie, Herbert Smith, JiaYuan
SOHO China Hong Kong IPO
1,900
Commerce & Finance, Conyers Dill & Pearman, Freshfields, Haiwen & Partners, Skadden, Zhong Lun
Want Want China Hong Konag IPO
1,050
Freshfields, Jingtian & Gongcheng, Jun He, Lee & Li, Maples & Calder, O’Melveny & Myers
China Railway Group Hong Kong IPO
2,800 DLA Piper, JiaYuan, Kaiwen, Linklaters, Simpson Thatcher
Coca-cola’s proposed takeover of Huiyuan Juice
2,400
Freshfields, Skadden, Herbert Smith, Dacheng
China Merchants Bank acquisition of Wing Lung Bank
4,700
Freshfields, DLA Piper, Deacons, Clifford Chance
ICBC acquisition of Seng Heng Bank China Telecom acquisition of China Unicom’s CDMA business
600 Advogados & Notarios, JNR Advogados, King & Wood, Linklaters, JSM 15,800
Commerce & Finance, Freshfields, Jingtian & Gongcheng, Sullivan & Cromwell * This table does not purport to be exhaustive
www.legalbusinessonline.com
香港律师业将大陆 市场视为王牌
如
谈及香港律师事务所近期代理的典型交易，中 国旺旺香港 IPO 和可口可乐计划收购汇源果汁 集团即是例证。 中国旺旺是在开曼群岛注册的台湾公司，主要市场位 于中国大陆。今年3月，中国旺旺启动香港 IPO并募集14 亿美元资金，一举成为亚洲食品和饮料行业募股规模最 大的企业。鉴于此次创纪录的 IPO 业绩，使得帮助中国 旺旺成功上市的律师事务所当之无愧的进入2008年ALB 香港法律大奖“年度股权市场交易”入围榜单。 随着香港与大陆的经济联系日益密切，《亚洲法律杂 志》在进行五个地区法律大奖的调研评选工作时，难度 也不断提高，对于中国和香港地区而言尤其如此。 因此，今年香港法律大奖入围榜单交易类的多数候选 项目均与大陆市场有密切联系，涉及重要中国地区业务 资产或大型中国企业。 在香港拥有长期工作经验的公司法律师，尤其是外 资律师事务所的律师，正亲身经历香港和大陆经济之间 的快速融合与一体化发展。他们认为这是自然的发展趋 势，并期望从中获益。 史密夫律师事务所在香港的公司业务合伙人 Andrew Tortoishell 表示：“过去十年内，我们在香港从事的多数 公司法业务都不同程度与中国相关，而且90%的中国相 关业务都具有离岸因素。” 高伟绅律师事务所香港合伙人 Andrew Whan 对此 表示赞同。 Whan 表示：“有些涉及中国公司的交易正日趋复 杂，他们需要引入更多的外部法律顾问提供协助。事 务所处理的中国大陆相关业务显著增长，香港团队从 中获益匪浅。” 尽管目前香港资本市场处境艰难，高伟绅仍为11宗 香港 IPO 项目担任法律代表，所有项目均涉及中国 业务。
并购推动未来增长
在过去十年里，来自中国的企业和资产似乎主导了香 港 IPO 和上市业务。国际律师事务所香港办公室的公 司法业务团队以往一直忙于处理 IPO 业务，现在则期 望与大陆相关的并购交易成为未来收入增长的主要推 动因素。 如今的香港法律市场呈现一种有趣的现象，越来越多 的战略投资者正投资于或购买在香港联交所上市的中国 企业股票。可口可乐公司收购汇源果汁的计划即是该趋 势的最新印证，在该交易中，可口可乐公司计划出资24 亿美元收购香港上市的汇源果汁集团。 Tortoishell 表示：“随着越来越多的中国公司在香港上 市，一段时期后，将为香港律师带来更多并购业务。此 类公司的核心资产位于中国，但多数并购法律工作需在 香港完成。”史密夫律师事务所曾代表客户参与诸多涉及 香港上市中国公司的并购交易，诸如可口可乐收购汇源 果汁，以及国美电器收购永乐电器。 对香港上市中国公司进行私募股权投资是市场的另一 发展趋势，尽管目前尚未大规模出现，但律师们预计， 该领域的业务将在不远的未来迅速增加。Tortoishell 表 示：“由于监管限制，私募股权基金在中国直接投资十分 困难，但对于在香港上市的中国公司而言，对其进行巨 额投资或收购则相对容易很多。”
来自大陆同行的竞争？
如果大陆企业在香港经济所占比重持续增长，是否意味 着中国律师事务所将占据更重要的地位，甚至可能接手 以往由香港律师事务所负责的工作？ 接受《亚洲法律杂志》采访的律师普遍表示，随着中 国大陆的法律和监管环境日趋成熟，中国法律顾问在跨 境交易过程中的作用亦日趋重要。以可口可乐计划收购 汇源果汁为例，北京大成律师事务所接受收购方委托， 处理反垄断申报事务，对成功完成交易发挥至关重要的 作用。中国同行专业实力的不断加强对多数在香港的国 际律师同行而言是则好消息。 司力达律师事务所的 Bernita Yu 表示：“我们始终认 为，中国法律事务最好由中国律所处理，发挥其专业优 势。在优化交易结构方面，对中国法律顾问的需求也在
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NEWS | analysis >>
持续增长。但这并不意味着，如果中国律师事务所实力 增强且更多参与交易，我们的利润就会缩水。” 鉴于多数跨境交易通过离岸机构设计结构，且涉及普 通法司法管辖地，香港的国际顾问律师仍将在交易顾问 服务过程中保持领先地位。 Yu 表示：“对于多数高端跨境交易而言，仍需要国
际化专业能力和香港法律顾问。原因包括，诸多交易涉 及的中国公司在香港上市，交易需要完成大量的香港监 管审批工作。尽管部分交易受中国法律管辖，但仍涉及 海外交易方，需要按照国际惯例操作，如法律文件起草 等，因此，仍然需要国际和香港律师的深入参与。” 目前，已有多家领先的中国律师事务所在香港成立分
所，其中包括金杜、君合及国浩。中伦亦有近期在香港 开设分所的计划。目前，这些中国律师事务所的香港分 所以外国律师事务所身份在香港注册，仅能就中国法律 事务提供咨询服务。但当这些分所达到监管资格要求， 能够聘用香港律师并提供香港法律方面的顾问服务时， 是否将开创香港法律服务市场的全新纪元呢？
Analysis
InBev decision sheds light on future of China M&A
C
hina’s first published competition decision following the introduction of the antimonopoly law in August has shed light on the future of M&A in China, according to various competition lawyers, but some elements of it are still in the shadows. The decision, in which the country’s Ministry of Commerce (MOFCOM) approved Belgium-based beer manufacturer InBev’s US$52bn acquisition of Anheuser-Busch, has lawyers on the edge of their seats as to how the government will approach competition law and the future of inbound deals. “The InBev decision provides a valuable insight into how MOFCOM is likely to approach future transactions,” said Mallesons Stephen Jaques partner Martyn Huckerby, a Shanghaibased competition and antitrust lawyer. “This ruling is largely encouraging. It provides greater transparency in relation to MOFCOM’s merger control practices and, in turn, greater certainty in relation to the regulatory issues affecting investment in China.” According to Huckerby, the InBev decision is significant because it further emphasises the importance of parties consulting and negotiating conditions with MOFCOM, before and after the transaction, to obtain clearance. Chong Kin Lim, co-head of the Drew & Napier competition law practice, agrees. “I think the key thing for firms contemplating merger activities in China is to consider how to engage the Chinese competition authorities early in the merger process so that concerns can be identified in advance to minimise any unexpected outcome,” he said. However, other law firms including Freshfields and Linkaters have published critical analyses of the
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decision. Freshfields detailed that, although MOFCOM insisted that the InBev ruling will not restrict future competition in the beer market, certain conditions would be imposed to prevent any adverse effects on China’s beer market. These included MOFCOM: preventing both parties from increasing stakes in certain assets; preventing InBev from acquiring stakes in two of China’s main breweries; and requiring InBev to inform MOFCOM of any changes to its shareholders. “As a first glimpse of MOFCOM’s remedies policy under the anti-monopoly law, these undertakings demonstrate an approach not typically associated with ‘pure’ competition law review,” read a Freshfields publication on the decision. “[The decision] demonstrated that the Chinese merger control authority is willing to adopt an approach to remedies that at first sight differs from the international norm.” But, according to Huckerby, while the anti-monopoly law is based on
international competition regimes, the law will always be applied in a Chinese context. “The InBev clearance came at a similar time to the [conditional] US and UK clearances, which suggests that MOFCOM will consider the approach being adopted in other jurisdictions but will reach its decision in a manner that reflects its understanding of the relevant circumstances in China,” he said. Nevertheless, observers have felt that M&A activity is likely to be subdued as a result of the ruling. The impositions forced on the InBev parties have led to discussions as to whether it will likely affect the attitudes of foreign companies looking to invest in China, including the giant M&A deal currently under review before MOFCOM – Coca-Cola’s bid for local juice maker Huiyan Group. Despite these sentiments, inbound M&A is looking healthy. A recent investigation commissioned by MOFCOM to counter fears of a foreign corporate invasion of local companies found that, as yet, no overseas M&A ISSUE 5.12
NEWS | analysis >>
case has threatened China’s industry security. And according to Lim, China’s importance in the global economy will likely counter any potential decline caused by fears in the InBev decision. “While no doubt this decision will have an impact, the fact remains that the Chinese economy is a key market and firms cannot afford to bypass this market simply due to regulatory scrutiny by the Chinese authorities,” said Lim. ALB
首例反垄断审核结果 照亮未来并购前景
诸
多竞争法律师表示，八月《反垄断法》实施后， 商务部通过了首例反垄断审核将为未来并购交易 前景指明方向。 近日，商务部正式附条件批准通过了对比利时英博集 团以520亿美元收购安海斯(Anheuser-Busch)的经营者 集中反垄断审查。由此引发业内律师热议政府执行反垄 断法的方式以及中国境内并购交易的前景。 Martyn Huckerby 是万盛律师事务所上海办事处合伙 人，亦是竞争和反垄断领域的专业律师，他表示：“针 对英博收购案的裁决可帮助业内律师深入洞察商务部 对日后交易的处理方式。此裁决发出了鼓舞人心的信 号。通过此裁决，商务部对合并控制管理的流程展现 出更高的透明度，使得与中国投资相关的监管环境确 定性更高。” Huckerby 认为，英博收购案的裁决具有重要意义， 原因在于，该裁决进一步强调在交易前后相关各方为获 得批准与商务部沟通并协商条件的重要性。 新加坡德尊律师事务所竞争法业务联合主管 Chong Kin-Lim 对此表示赞同。他说：“对于计划在中国进行并 购交易的企业而言，成功的要素在于，如何在交易流程 初期与中国监管机构积极沟通，从而事先确定有待解决 的问题，将意外情况出现的可能性降至最低。” 包括富而德和年利达在内的其它律师事务所曾发表对 此项裁决的重要分析。富而德的详尽分析认为，尽管中 国商务部坚持表示，英博收购案的裁决不会限制啤酒市 场的未来竞争，但裁决仍附带特定条件，以防止对中国 啤酒市场造成不利影响。 商务部的附加条件包括：防止双方增持特定资产的股 份；防止英博收购中国两大啤酒生产企业的股份；并要 求英博就股东情况的任何变化上报中国商务部。 富而德针对裁决的研究报告认为：“此次裁决是中国 商务部依据《反垄断法》作出的首项裁决，裁决内容体 现出与‘纯粹’竞争法审查不具有典型相关的处理方式。 （裁决）表明，中国的合并控制监管机构愿意采取新的 处理方式，弥补与国际管理的差异。” 但 Huckerby 认为，尽管《反垄断法》依据国际竞争 法体制制定，但始终还要在中国的司法环境下执行。他 表示：“英博收购案在中国的有条件通过与美国和英国 收购案的核准在同一时期作出，这表明，中国商务部愿 意考虑其它司法管辖地的处理方式，但最终作出裁决的 方式必须体现对中国相关情况的了解。” 不过，仍有观察人士认为，此项裁决可能抑制中国的 并购交易。由于监管机构要求英博收购案各方接受的强 制条件，引发业内人士讨论，对于有意进入中国投资的 外国公司而言，此举是否会影响其积极性，其中包括目 前待商务部审查的可口可乐收购中国本土果汁企业汇源 集团的巨额并购交易。 尽管存在各种不同观点，中国国内的并购交易仍保持 健康发展。商务部近期进行的一项调查认为，海外并购 案未对中国的产业安全造成威胁，缓解了有意收购中国 企业的外国公司的担忧。Lim 认为，中国在全球经济中的 重要性可抵消英博收购案裁决引发的潜在消极影响。Lim 认为：“毫无疑问，此项裁决将为市场带来重要影响，但 中国仍具有重要的市场地位，企业不会仅仅因为政府部 门的监管审查而放弃中国市场。”
www.legalbusinessonline.com
Analysis
Cautious optimism sounds as winter chills Although tales of economic woe continue to grab headlines across the world, most law firms in China remain cautiously optimistic
L
aw firms around the world are cutting associates and support staff from the payroll, and the layoffs pick up pace as the financial crisis deepens and widens. Although few news reports about local firms making redundancies have come out of China, there are talks within local legal circles that a number of firms are experiencing a tough time. Boutique firms, particularly those specialising in capital markets, private equity and investment funds, are among the hardest hit. Large full-service firms are inevitably feeling the pinch of the worst financial crisis that the world has seen since the 1930s. “China isn’t too bruised by the global credit crisis, but all firms with a focus on cross-border transactional work have been affected, though to various degrees,” said Wang Weidong, managing partner of Grandall’s Beijing office, as he admitted that his firm was also affected. He pointed out that the impact on its capital markets, private equity and corporate finance practices are most costly. “A number of projects and transactions are stalled or withdrawn, which has resulted in clients paying for our legal services at a discounted rate. Meanwhile, some clients have delayed their payment due to the cash squeeze,” said Wang, giving a few examples of how the firm’s business is being affected. Due to economic uncertainty, things on the demand side of the legal market could get worse in the coming year. Facing a slowdown, or even a possible decline, in revenue growth, domestic firms are taking a very different approach from the one widely adopted by US firms. “As part of the culture, most PRC firms don’t see downsizing as the first choice to solve the problems,” said Wang. “People believe that even in quiet times firms need to enlist good lawyers in large numbers in an increasingly competitive [marketplace]. They also want to ensure they have strong intellectual capital to handle complex transactions once the
►► decline in work drives firms in the US to downsize Firm Cadwalader, Wickersham & Taft Clifford Chance Katten Muchin Rosenman Sonnenschein Nath & Rosenthal
Redundancies Laid off 96 lawyers (mostly in New York) in addition to 35 associates laid off in January 2008 Laid off 20 associates in New York and Washington DC Laid off 21 associates and counsel in Chicago Cut 37 lawyers in May 2008 and laid off another 25 lawyers in Chicago
good days return. “The market will definitely recover, but no one knows how long that will take,” Wang continued. Until the recovery comes, in order to keep their teams afloat, partners of most firms will have to face pay cuts. Thinking positive Many firms have lowered their outlook for 2009, but in order to achieve the best results possible in the current situation they are trying to turn obstacles into opportunities and prepare for the challenges ahead. Firms ALB China talked to are all acknowledging a trend that capital markets teams who were stretched thin working on a large number of IPOs and listings in 2007 are now receiving an increasing number of mandates from clients looking to restructure their companies and business. “In recent months, a rise in restructuring and insolvency work has compensated for the drop in the number of capital markets-related deals,” said Wang. During the past few years, Grandall advised on a large number of IPOs of Zhejiang-based, export-oriented enterprises. Now, after being hit by the global financial storm, many of these Zhejiang enterprises have to restructure or enter insolvency proceedings. Grandall’s corporate team, therefore, is frequently instructed to assist on the new issues. 13
NEWS | analysis >>
news in brief >> Taiwan residents to be qualified as PRC lawyers Over 30 Taiwanese lawyers will be allowed to practise in the mainland after passing China’s annual judicial exam, which had been banned to Taiwanese residents until April this year. A spokesman for the State Council Taiwan Affairs Office said that regulations to the provisions were currently being drawn up and would be released soon. The news follows an announcement in April by China’s Ministry of Justice to allow Taiwan residents to sit the September exam. Around 658 Taiwanese took advantage of the allowance, a fraction of the 370,000 candidates from the mainland. The Ministry encouraged the Taiwanese candidates in order to promote positive relations between the countries and further develop China’s economy.
台湾居民有望获中国律师资格
今年四月，中国每年一度的司法考试开始向台湾居民敞 开大门，30多位台湾律师通过该考试后，将获得在中国 从事法律服务的资格。 中国国务院台湾事务办公室发言人表示，相关监管法 规正在起草之中，很快将会公布。 在该新闻公布前，中国司法部曾于四月宣布，允许台 湾居民参加九月举办的司法考试。约658位台湾居民率先 报名考试，中国大陆参加考试的人数达到370,000。 司法部鼓励台湾居民参加考试，以便更好的推进两岸 关系，进一步发展中国经济。
US: DLA Piper to ask salaried partners to contribute capital US salaried partners of DLA Piper will contribute capital to the firm under a proposal to be voted upon by partners in December, according to the National Law Journal. The firm said that it is aiming to reduce its credit exposure by 30%, with joint chief executive officer Frank Burch commenting that this was a move which anticipated more changes in the credit landscape. “We thought it would be prudent to finance more of our operations with our own money as opposed to through our lines of credit with our banks,” Burch said. The firm has made a concerted effort in recent years to minimise bank debt as a means of financing expansion. The proposal, which will give salaried partners a limited stake in the firm’s profits, is also intended to encourage an “ownership” culture rather than an “employee” culture for salaried partners. But DLA Piper operations outside the US will not be affected by the proposal, with the status quo to be maintained.
美国：欧华要求受薪合伙人认购资本
据《National Law Journal》报道，根据一份待十二月 由合伙人投票表决的提议，欧华将要求美国受薪合伙 人认购资本。 事务所表示，此举旨在将信贷风险降低30％，联合 首席执行官Frank Burch 表示，该措施预先考虑到信贷 环境的各种变化。Burch 认为：“较之依赖银行信贷，我 们认为，利用内部资金保障事务所经营更为审慎。”今 年来，事务所作出巨大努力，减少银行债务，将其作为 财务扩张的手段。 根据该提议，受薪合伙人将领到事务所利润中有限额 的股份，同时还能推动为受薪合伙人营造“所有制”文化， 而不是“员工”文化。但欧华除美国以外的经营不受该提议 影响，仍保持目前的薪金方案。
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Dispute resolution is another area where firms have seen a sharp increase in client demand. “Because many contracts couldn’t be fulfilled due to the current economic and credit climate, our litigation partners have received an increasing number of mandates from clients to represent them in courts,” said Laurence Guo, a partner of Beijing firm Broad & Bright. Jun He, traditionally a firm that specialises in transactional work, has significantly strengthened its litigation and arbitration practices with a number of heavyweight lateral hires, including partner Liu Honghuan, former head of litigation at Zhong Lun, and Wu Lei, former partner with King & Wood. The firm’s recruitment efforts in the past year have paid off, as the economic
downturn leads to an increase in contentious legal matters. “During the period of economic turmoil, we won’t halt our graduate recruitment plan, but we will recruit at a slower pace and more cautiously,” said Kirk Tong, partner of Jun He. “The economic downturn could be a good time to acquire quality mid-level associates and partners, so we’ll actively be looking at lateral hires. It can also be a chance for lawyers who were too busy doing deals to devote more time to training and upgrading their professional knowledge and skills,” Tong said. This winter, the end of year bonuses for associates may be less sweet compared to last year’s, if there are any at all. However, with the spring festival approaching, the legal fraternity is mostly in good spirits. ALB
面对经济寒冬业 界保持谨慎乐观
王卫东认为：“市场肯定会复苏，只是不知道要等待 多久。”
为
应对当前经济危机，全球各大律师事务所纷纷裁 减律师和员工。尽管中国律师事务所裁员的报道 鲜见报端，但本地法律业界普遍认为，一些律师事务所 正经历举步维艰的窘境。 专门从事资本市场、私募股权和投资基金领域法律服 务的小型律师事务所遭受的打击可能最为严重。提供全 方位服务的大型律师事务所亦不能在这场自上世纪30年 代以来最严重的金融危机中独善其身。 国浩律师集团北京办公室执行合伙人王卫东表示：“虽 然目前全球信贷危机对中国影响有限，但主要从事跨境 交易领域法律服务的事务所均受到不同程度的影响。”他 同时透露，国浩的业务亦受到一定影响，尤其对该所的资 本市场、私募股权和公司融资等业务影响相对较大。 王卫东在举例介绍律所受影响时表示：“由于一些现有 客户面临经济压力，他们会推迟支付或要求按照折扣价 格支付法律服务费用。此外，律师代理的部分项目和交 易受经济的影响已经暂停进行或被迫取销。” 由于经济环境存在很大不确定性，明年法律服务市场 的需求情况可能继续恶化。面对经济增速放缓甚至可能 出现衰退的情况，本土律师事务所采取与美国律师事务 所截然不同的应对措施。 王卫东表示：“受本土文化的影响，多数中国律师事务 所并未将精简业务团队作为解决问题的首选措施。业界 普遍认为，在人才争夺日趋激烈的环境下，即使市场环 境不利，仍有必要继续招募优秀律师。各律所均希望保 持强大的人力资本优势，以便在经济回暖时有能力立即 投入复杂交易项目。”
乐观思考
在目前形势下，诸多律所均调低对2009年业务前景的预 期。但是，为在困境中获得最佳业绩，他们正努力将困 难转变为机遇，为应对未来挑战做好准备。 接受采访的律师事务所均注意到，2007年忙于大量 IPO和上市业务的资本市场团队从今年下半年开始业务 量日渐萎缩，但他们越来越多的在协助客户处理公司和 业务的重组和清算。 王卫东表示：“近一个月来，重组和清算业务的增加弥 补了资本市场业务下滑带来的影响。” 在过去数年内，国浩曾为诸多浙江出口导向型企业提 供股票发行法律顾问服务。目前，在全球金融风暴的打击 下，很多浙江企业又面临重组或破产。因此，国浩的公司 法团队经常接到客户委托，协助其处理相关事宜。 此外，争议解决是客户需求的另一快速增长点。 北京世泽律师事务所合伙人郭林军表示：“当前经济和 信贷状况造成大量合同无法履行，事务所诉讼业务合伙 人接到客户委托律师代理出庭的业务激增。” 君合律师事务所虽以代理交易业务为专长，其诉讼和 仲裁业务团队在过去一年中不断壮大，并吸引了多位重 量级律师加盟，包括中伦金通前诉讼业务主管刘虹环和 金杜前合伙人武雷。 在经济低迷导致争议法律事务激增的背景下，君合此 前的招募工作开始带来回报。 君合合伙人佟珂表示：“在经济形势不稳定的时期， 我们不会停止招聘计划，但会放慢招聘步伐，提高招 聘要求。” 佟珂同时表示：“经济低迷时刚好是吸引优秀中层律师 和合伙人加盟的绝佳机遇，我们将积极进行横向招聘。另 外，对于过多忙于处理业务的律师而言，亦可利用此时机 参与培训课程，提升专业知识和技巧水平。” ISSUE 5.12
NEWS >>
shanghai
Taiwan-mainland China centre to provide legal advice for Taiwan investors
I
n a sign of improved relations across the Taiwan Strait, a new Taiwan-mainland China cooperative legal service centre was officially inaugurated in early November. The Across-Taiwan-Strait Legal Service Center (ATS Legal Service Center) is a joint initiative of Dacheng and the Taiwan All-China Federation of Industry and Commerce (TAFIC). The ATS Legal Service Center aims to provide legal services for investors in Taiwan as well as mainland China with a particular aim of filling the gap in legal services for those who intend to invest in Taiwan. The inauguration ceremony attracted high profile officials from bodies such as the Shanghai East Asia Institute, Shanghai Federation of Industry and Commerce, Shanghai Changning District Municipal Bureau of Justice and Pudong Zhangjiang Hi-Domain, all of whom spoke highly of the initiative. ALB
两岸法律服务中心在上海 正式成立
uk report Firms sink or swim as the credit crunch fallout continues City firms have had their mettle tested as the credit crunch continues its onslaught. While some have sailed through the turmoil relatively untouched (Trowers & Hamlins, Norton Rose, CMS Cameron McKenna, Ashurst, Pinsent Masons), others have struggled to stay buoyant. Eversheds, Halliwells, Cobbetts, Wragge & Co and Addleshaw Goddard were just some of the firms experiencing revenue drops over the first half of 2008/09. Wragge & Co was one of the hardest hit, suffering a 6% downturn in annual earnings to £44m, followed by Cobbetts (5–10% down), Eversheds (4%, down to £188m) and Halliwells (3.1%, down to £44m). Addleshaw Goddard reported a loss of 2.8%, down to £94.7m. Other firms, however, have weathered the volatile H1 term to enjoy double-digit revenue growth for the first six months of the year. Trowers & Hamlins was up 16% in revenue to £42m, followed by Norton Rose (up 11% to £141.5m) and CMS Cameron McKenna (up 10% to about £113m). Ashurst, Pinsent Masons and Simmons & Simmons have also seen reasonable rises in revenue – of 7.5%, 7% and 5.5% respectively. Bird & Bird had a particularly impressive H1 period, bringing in an extra £85m, translating to a 30% rise in turnover.
Pinsents soars in AIM ratings Pinsent Masons is sitting comfortably at the top of London’s Alternative Investment Market (AIM) rankings after scooping an extra two AIM clients over the final quarter. Data provider Hemscott reported that Pinsents’ AIM tally of 61 meant the firm was now lead advisor to the largest number of clients on the AIM table. Simmons cuts staff Simmons & Simmons recently instituted lawyer redundancies in several practice groups across London following a three-year review of its wage bill. It was reported that eight lawyers and 19 service staff were made redundant. In addition, 35 lawyers were sent on secondment and 15 others, including two partners, were relocated to the Middle East and Russia. More UK firms fold to redundancy talks: Hammonds begins lay-off discussions with minimum 20 staff Hammonds recently joined several other UK firms as it began redundancy consultations with at least 20 staff. These redundancies were likely to affect the corporate and real estate departments across all the firm’s offices. Taylor Wessing also recently confirmed it had engaged in redundancy talks with six members of its real estate group due to the market downturn.
在
两岸实现大三 通、经贸关系更 为紧密、台湾逐渐开 放大陆投资的新形势 下，两岸法律服务中 心于11月初成立。 两岸法律服务中心 (ATS Legal Service Center)由大成律师事 务所和台湾中华工商 联(TAFIC)共同发起 创立。 该中心旨在为台湾和 中国大陆投资人提供 法律服务，尤其侧重 为赴台投资人弥补法 律服务方面的空白。 来自上海东亚研究 所、上海市工商联、 上海长宁区司法局、 浦东张江功能区等单 位的领导亲临揭拍仪 式，对该服务中心的 成立予以高度评价。
www.legalbusinessonline.com
ROUNDUP • Eversheds UK managing partner Bryan Hughes will replace David Gray as the firm’s next chief executive in May 2009 for a four-year term • The Freshfields London office lucked out in the firm’s third round of counsel promotions this year, with the City office picking up just one of the 11 global promotions • Norton Rose is soon to launch an anti-corruption and business ethics group that will cater to eight jurisdictions across Europe, the Far East and the Middle East. The initiative will be headed by disputes partner Sam Eastwood and focus on helping clients reduce their exposure to anti-fraud legislation • The poaching partners dispute between Taylor Wessing and Nixon Peabody has settled, and Nixon Peabody will soon launch its new Paris office with 13 of Taylor Wessing’s former Paris partners, including former managing partner Arnaud de Senilhes • Goodwin Procter is set to open a city office with the help of a former UK hospitality and real estate finance duo from Heller Ehrman • Shearman & Sterling has reintroduced its European managing partner role, with M&A partner Creighton Condon set to relocate from the firm’s New York office to take up the post
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hong kong
beijing
Ashurst boosts China presence with JV
China stimulus package “good news” for legal sector
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shurst has developed links with two Asian firms in advance of its Hong Kong office launch in February 2009. The firm has forged an association with local law firm Jackson Woo & Associates (JWA) which will allow it to practise local law alongside its international practice. JWA’s affiliation with China’s Guantao also provides Ashurst with a non-exclusive alliance with Guantao. “We’re delighted to have found likeminded partners in [JWA’s] Jackson and Sabrina Fung, both of whom have been voted into the Ashurst partnership,” said Ashurst Hong Kong office managing partner Robert Ogilvy Watson. “Formal associations aren’t permitted with PRC law firms so [the alliance with Guantao] is in effect as much as the current law permits.” The association with JWA was recently approved along with the firm’s registration as a foreign law firm. A merger will see the firms officially become a single entity in 2011, pending approvals. The firms are currently operating in JWA’s offices, but are said to be looking to move to new premises early next year. They are also looking to boost office numbers by a couple of dozen lawyers. “Needless to say, we’re all very excited by the future prospects for our Asia practice but mindful of the challenges that exist due to the current economic climate,” said Watson.
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In September, Ashurst’s Watson and JWA’s Jiabiao Hu attended a forum meeting held by Guantao to “exchange ideas regarding the firm’s management and business development”. ALB
Ashurst 借助合资发展中 国业务
在
2009年2月Ashurst香港办公室正式成立之 前，Ashurst已经与胡家骠律师事务所建立 合作，使 Ashurst 能够同时从事香港本地法律和 国际法律业务。由于胡家骠律师事务所与北京观 韬律师事务所签有联盟协议，Ashurst 亦有机会 与观韬建立非专属合作关系。 Ashurst 香港办公室管理合伙人Robert Ogilvy Watson表示：“能够遇到Jackson 和 Sabrina Fung （胡家骠律师事务所）这样志同道合的合伙人， 我们非常高兴，经过投票，这两位律师都已拥有 Ashurst合伙人身份。目前中国法律尚不允许双 方正式联合，因此，（与观韬）联合仅在目前法 律允许的范围内有效。” Ashurst 以外国律师事务所身份在香港提出的 注册申请已经获批，同时获批的还有该所与胡家 骠律师事务所联营的申请。到2011年，获得监 管机构批准之后，双方将正式合并成为一家事 务所。Ashurst 目前在胡家骠律师事务所办公室 运作，但Ashurst表示，明年初将搬入新办公地 址。Ashurst 还计划新增二十余位律师，扩大办 事处规模。Watson 表示：“毫无疑问，我们对亚 洲法律市场的前景非常乐观，但由于目前的经济 环境不利，还应重视业务面临的挑战。” 今年九月，Ashurst 的Watson和胡家骠律师事 务所的胡家骠共同参加了观韬律师事务所举办的 论坛，借机“交换事务所管理和业务发展方面的 看法”。
C
hina’s stimulus package is expected to increase legal work as the government injects investment in the country’s infrastructure, according to local lawyers. In a bid to offset adverse effects from the global financial crisis, the Chinese government pledged US$570bn towards the country’s housing, infrastructure, water, electricity, and transportation sectors. Although it is unclear how the package will be implemented, it is designed to boost the domestic economy and expected to encourage trade relations between its Asian neighbours. “It’s good news,” said Tom Chau, partner in Herbert Smith’s Beijing office. “We expect to see an increase in deals … We also expect … new opportunities in other related sectors such as logistics, construction and consulting.” Following the announcement of the package, stock markets in Asia soared on expectation that Chinese demand for commodities will boost trade relations in the region. Chau said that more cross-border transactions are likely to occur, as large-scale investments often require international experts and service providers. “[For example], legal documentation is needed to regulate the relationship of participants. It’s expected that the need for legal advice won’t be confined to only one or two jurisdictions, but will spread across different jurisdictions.” The global financial crisis is also boosting outbound M&A deals, as Chinese companies take advantage of market volatility and buy up distressed foreign companies. The growth opportunities have most recently driven insurance and telco giants China Life and China Mobile in their aggressive hunt for global acquisitions. Chau advises investors to be cautious, and adopt more stringent and detailed legal documentation to minimise legal risks. But he also agrees that an end to China’s export-driven economic dependence is likely to be seen. “The ISSUE 5.12
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us report
Tom Chau, Herbert Smith
Chinese economy has changed from an export-driven economy to a more diverse economy, and we expect this to continue,” said Chau. “The global financial crisis may accelerate such changes.” ALB
国家经济刺激计划为法律 服务业带来“利好消息”
为
应对全球金融危机的不利影响，政府于11月 初宣布高达5700亿美元（4万亿元人民币） 的刺激经济计划，向住房、基础设施、供水、电力 和交通领域加大投资。尽管投资计划的具体执行方 式尚不明确，业内律师预计此举将推动市场对法律 服务需求的增长。 英国史密夫律师事务所北京代表处合伙人Tom Chau表示：“由于政府加大对基础设施领域的投 资，我们预测交易量将不断增加。此类投资还能 催生其它相关领域的全新业务机会，如物流和建 筑业。因此市场对法律服务的需求亦会增长。” 在刺激经济举措颁布之后，市场预计，中国未 来对商品的需求将推动整个地区贸易关系的发 展，进而亚洲股市普遍上涨。Chau 认为，由于 大规模投资需要国际专家和服务提供商的参与， 未来将会出现更多跨境交易。 “市场对法律顾问服务的需求不会局限在一两 个司法管辖地内，而将涵盖不同的司法管辖地， 包括亚洲各国。” 全球金融危机亦推动境外并购交易量的增长， 中国公司借助市场价值挥发的良机，出手收购陷 入窘境的外国公司。这一赢得业务增长的机遇促 使保险业和电信业巨头中国人寿和中国移动积极 进行全球收购。中国人寿首席投资官表示，并购“ 机遇正日益凸现”，毫无疑问，海外保险公司市价 贬值是最有力的推动因素。 Chau 建议投资人保持谨慎，采用更严谨更详尽 的法律文件，尽量降低法律风险。对于中国依赖 出口推动的经济模式即将结束，他亦表示赞同。 Chau 认为：“全球金融危机很可能加速中国的 经济转型。”
www.legalbusinessonline.com
Former Heller employees strike back Three laid-off Heller employees locked horns with the firm recently over unpaid wages. The disgruntled trio filed a class action complaint against the dissolving firm in September, requesting a jury trial over money they believe should have been paid post-redundancy, in accordance with federal and California worker adjustment and retraining notification (WARN) laws, California vacation laws and the firm’s own employee “contracts” governing vacation payouts. The suit proposed various classes, which were likely to cover “hundreds” of staff and associates who were laid off as a result of the firm’s impending break-up. Thelen Reid calls it quits It seems that Thelen Reid Brown Raysman & Steiner is set to join Heller Ehrman in the dissolution stakes. The partnership council of Pinsent Masons’ former US alliance firm recently confirmed that it would be recommending the firm’s dissolution, citing the economic downturn and mass defections (reportedly more than 100 lawyers during 2008) as the cause. The break-up, decided in a crisis meeting with the firm-wide partnership, is set to occur in early December, and a three-partner administrative committee has been appointed to oversee the wind-down process.
The firm has said it will pay its employees 60 days’ salary as well as all accrued vacation pay. Chadbourne slides into saving mode Chadbourne & Parke has put a freeze on hires temporarily in an attempt to stay afloat in the turbulent economic environment. The firm-wide hiring stop extends to both legal and non-legal staff, and managing partner Charlie O’Neil reportedly revealed that any gaps in short-staffed practice areas would be filled – temporarily – by shifting lawyers from areas that were less busy, rather than hiring laterally. Chadbourne’s planned technology upgrade will also be delayed as another cost-saving measure. US firms downsize amid economic pressure O’Melveny & Myers and Dewey & LeBoeuf have joined the raft of US firms buckling due to the economic downturn. While O’Melveny was reportedly looking to reduce its staff and associate headcount as part of cost-cutting measures, partners at Dewey have had to do without their monthly distributions since August due to a decision by the firm’s executive committee to hold on to the monthly share of annual profits to bulk up the firm’s cash reserve. This has not affected the partners’ monthly fixed payments, which continue as per normal. Eversheds also recently suspended two quarterly profit distributions to partners.
ROUNDUP • Atlanta-based Powell Goldstein and international firm Bryan Cave are set to join forces in January 2009. The merger will create a firm of about 1,165 lawyers – overtaking the headcount at King & Spalding • White & Case closed its 15-lawyer Milan office last month, ending the firm’s presence in Italy. White & Case also closed its 18-year-old, seven-lawyer Dresden office. Three of the departing partners were expected to launch an office in Dresden for KPMG Legal in January 2009 along with two other White & Case associates • Dewey & LeBoeuf is set to close its 11-lawyer office in Charlotte, North Carolina in late December, due to economic conditions • US firm McKee Nelson has seen a decrease in its lawyer headcount to 174, after laying off 13 associates across its New York offices and four in Washington DC in response to the economic downturn • Former Heller Ehrman chairman Matthew Larrabee recently joined Dechert’s San Francisco office as a senior trial lawyer
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NEWS >>
Update >>
beijing
Shanghai
US law firms in Chinese corruption probe
外商投资矿产勘查企业之法律规制
T
由
商务部和国土资源部联合颁布的《外商投资矿产勘查企 业管理办法》(简称“《办法》”)已于2008年8月20日起施 行。该《办法》被业界理解为国家对外商投资矿产勘查 领域的政策调整的又一个标志性规范。
一、《外商投资产业指导目录》对矿业投资的政策调整
2007年修订的《外商投资产业指导目录》对外商投资矿业的政策作 了调整, 主要体现为: (1)减少鼓励类矿种, 并将多数鼓励类矿种之投 资方式限定为合资或合作; (2)加大对稀缺或不可再生资源的保护力 度, 将磷矿开采选矿, 大洋锰结核、海砂开采等列入限制类, 将钨、 钼、锡、锑、萤石等勘查开采列为禁止类。
二、《办法》对外资探矿企业的规定
办法》第六条规定, 中国投资者可以合法拥有的探矿权和与该探矿 权相关的地质勘查资料作为出资或合作条件与外国投资者共同设立 企业。因《办法》仅规定中国投资者可以探矿权出资, 目前外方是 否有权以探矿权出资在法律上仍有疑问。另外, 《办法》第七条规 定, 设立从事属于《外商投资产业指导目录目录》限制类的外商投 资矿产勘查企业由商务部负责审批; 其它矿产勘查企业由地方商务 主管部门负责。上述规定将《办法》与《外商投资产业指导目录》 加以衔接, 增加了外商投资限制类矿种的审批环节。
三、外商获得探矿权的有关实践
国家对探矿权出让实行招标拍卖挂牌制度。在《办法》出台前, 实 践中出让人一般同意中国境内外的自然人、法人和其他组织可直接 参与竞买, 竞买成功后, 外方在当地设立企业或代表机构, 以该机构 向主管部门申领勘查许可证。同时, 还存在以非矿业的外商投资企 业申请探矿权, 待取得勘查许可证再向外资主管部门申请增加经营 范围, 或不申请增加经营范围而通过委托第三方 勘查单位进行矿产勘查活动的情况。 办法》的出台可能意味着国家对矿产勘查领域 监管的日趋严格。但是, 这是否意味着外商获得 探矿权的实践做法将亦随之调整, 即外商是否需 要依照《办法》的程序设立外商投资矿产勘查企 业后方可参与探矿权的竞拍、领取勘查许可证并 需自行从事矿产勘查活动, 尚待进一步关注。
俞卫锋: david.yu@llinkslaw.com 冯凯恒: sam.feng@llinkslaw.com Llinks Law Offices 通力律师事务所 Shanghai 21F, South Tower, Shanghai Stock Exchange Building, 528 Pudong Road South Shanghai 200120 PRC Tel: (86 21) 6881 8100 Fax: (86 21) 6881 6880
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he Chinese government is investigating deals involving two US law firms in a wider corruption probe which saw the detention of officials responsible for approving foreign investment deals into the country. According to Chinese media, special government investigators are reviewing investments cases in which two US-based law firms are involved. Media sources did not name the firms but revealed they had offices in Hong Kong and Beijing. Richard Cassin, from US-based firm Cassin Law, said that American law firms embroiled in the corruption probe may risk criminal prosecution at home under the Foreign Corrupt Practices Act (FCPA). He also said that these problems may emerge when law firms are not careful enough in complying with the act. “Foreign lawyers practising with American firms in nonUS offices sometimes know little or nothing about the FCPA, and may be reluctant to ask for help in understanding it,” he said. “Yet those same lawyers are frequently called upon to help clients secure business and investment licences in high-risk countries such as China. The work requires daily contact with regulators, either directly or through intermediaries, and many of the regulators openly expect illegal gifts and payments.” Regulators have also been implicated in the probe. In August and September 2008, Ministry of Commerce officials Guo Jingyi, director of treaty and law, and Deng Zhan, deputy head of foreign investment, were detained by government investigators. Both held positions crucial to the approval of FDI deals into China. Two other lawyers, from Beijing-based law firm Si Feng (also known as Seafront), were also detained in connection to the probe, said Chinese media. According to reports, Deng Zhan had accepted bribes from a Si Feng lawyer to approve FDI deals. Reuters sources said that the crackdowns are likely to stifle current and future foreign investment deals. “This thing makes people get nervous and will naturally slow down or
region
俞卫锋
冯凯恒
Latham promotes 30 W
hile law firms around the world are cutting associates from the payroll, at least one has been on a promotion overhaul. Latham & Watkins has promoted 30 attorneys to partnership across its global platform. In Asia, corporate attorney Rajiv Gupta has been promoted to partner in the Singapore Michael Sturrock, office while Benjamin Su and Kuang H Tang Latham & Watkins will become counsel in the firm’s Hong Kong and Tokyo offices, respectively. Gupta has been advising on corporate finance and general securities deals across Southeast Asia, with a focus on the emerging market in India. “He’s played a significant part in further developing our capital markets practice in the region, particularly in India,” said the firm’s Singapore corporate chair Michael Sturrock. Su joined the firm in ISSUE 5.12
NEWS >>
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Insurance Insurance funds expand into equity investments
even tighten deal approvals involving foreign investments before the government gets the full story,” said the source, who asked to be unnamed. ALB
外资律所身陷腐败调查
中
国政府正在对涉及两家外资律所的腐败交易案进行调查，同时，负责 审批外商投资交易的主管官员已被羁押。 据国内媒体报道，特别政府调查员正在审查涉及两家外资律所的投资案 件。媒体并未指出相关事务所的名称，但透露当事律所在香港和北京设有 代表处。 美国律所 Cassin Law 的Richard Cassin表示，根据《反海外腐败法》 (FCPA)，身陷腐败调查的美国律师事务所很可能在美国受到犯罪指控。他 同时表示，如果律师事务所在遵守《反海外腐败法》方面疏忽大意，便很可 能遇到上述问题。他认为：“对于在美国律师事务所本土以外办事处工作的外 国律师而言，有些人对《反海外腐败法》知之甚少，不愿主动寻求帮助，了 解该法案的内容。而此类律师又经常帮助客户在类似中国这样的高风险国家 处理业务和投资执照方面的问题。此类工作需要经常直接或间接接触监管官 员，很多监管官员会公开索要违法的礼品和贿金。” 监管机构的官员同样陷入腐败调查中。今年八月和九月，商务部条法司巡 视员郭京毅和外资司副司长邓湛均被政府调查人员羁押。二人的职位均对外 商直接投资以及外资并购的审批具有至关重要的影响。 此外，北京思峰律师事务所主任张玉栋以及律所原合伙人、投资顾问刘阳, 也因与此案相关而先后被检方带走。据报道披露，邓湛曾接受思峰律师提供 的贿赂，违规批准外商直接投资项目。 路透社消息人士称，此次调查很可能对当前和未来的外商投资项目造成 重大影响。 该匿名消息人士指出：“该调查令业内人士倍感紧张，在政府公布事件的全 部情况之前，自然会延缓甚至紧缩对外商投资项目的审批。”
associates 2005 from Simpson Thacher & Bartlett, while Tang’s experience in M&A undoubtedly has the firm focusing on the expanding market in Tokyo. ALB
瑞生晋升30位律师
在
全球律师事务所普遍裁员的背景下，瑞生律师事务所反其道而行，在 全球范围内将30位律师晋升为合伙人。 在亚洲，公司法律师Rajiv Gupta晋升为新加坡办公室合伙人，Benjamin Su 和 Kuang H Tang 分别成为瑞生香港和东京代表处的顾问律师。Gupta 主要负责东南亚地区公司财务和普通证券交易方面的法律顾问服务，侧重 印度的新兴市场。 瑞生新加坡办事处主管 Michael Sturrock 表示：“Gupta 在事务所资本市 场业务的发展过程中发挥了重要作用，对于印度市场的拓展更是不可替 代。”Su 2005年离开盛信进入瑞生，Tang在并购领域经验丰富，可帮助瑞 生积极开拓东京市场。
www.legalbusinessonline.com
R
ecently it was reported in the financial news that the China Insurance Regulatory Commission of the State Council (CIRC) had allocated RMB200 billion to carry out a pilot investment program for funds held by insurance companies. The RMB200 billion amount has been equally invested across infrastructure projects and other equity investments. It is understood that the CIRC has drawn up two regulations to implement the pilot program: the Administrative Measures for the Equity Investment by the Insurance Institutions and the Operating Guideline for the Insurance Institutions’ Equity Investment in the Infrastructure. Prior to the introduction of these two regulations, insurance funds had already begun to make equity investments within the insurance industry. In March 2006 the CIRC promulgated the Administrative Measures for the Pilot Indirect Investment of the Insurance Funds in the Infrastructure which permitted 5% of total life insurance funds and 2% of total property insurance funds to be invested in infrastructure projects. The State Council approved infrastructure investment programs worth RMB12 billion of which RMB10 billion was allocated to China Ping An Insurance Company’s investment in infrastructure projects and RMB2 billion was allocated to China Life Insurance, People’s Insurance Company of China and TaiKang Life Insurance Company. Soon after on July 20, the ceremony for the delivery of the stock of the Taichang, Changjin and Jinjiao expressways in Shanxi province was held in Shanxi and the expressway project funded by China Ping An Trust & Investment Co. Ltd in Shanxi began. This was the first infrastructure project indirectly funded by Chinese insurance funds. The CIRC has since ratified many infrastructure investment project investments by Ping An Insurance Company such as the Jingdong expressway project in Hubei province and the water facilities project in Liuzhou, Guangxi province. Such projects demand large amounts of capital and long operating periods, which match the investing profiles of insurance funds. In September 2006, the CIRC promulgated the Notice of the Investment in the Stock of the Commercial Bank by Insurance Institutions, permitting insurance institutions to invest in the equity of unlisted banks, such as state-owned commercial banks, joint equity commercial banks and urban commercial banks within China. China Life Insurance Company, the largest insurance company in China, made an investment in Guangdong Development Bank and Ping An Insurance Company merged with Shenzhen Commercial Bank. The process of allowing insurance funds to be invested in unlisted banks and in the equity of unlisted companies has resulted in the ban on investing insurance funds being gradually removed. With the implementation of the PRC’s newly revised Partnership Enterprise Law, the channels available for insurance funds to be invested in the equity of unlisted companies will continue to expand and diversify. This will further accelerate the fixed financial operation reform in China. These new markets provide new opportunities for providers of legal services. The new opportunities coexist with challenges for lawyers specializing in insurance and investments. Perhaps the reforms will hasten the return of a bull market allowing the Chinese capital markets to boom once again. Zhan Hao, Managing Partner Grandall Legal Group Beijing Office Tel: 010-65890699 Fax: 010-65176801 E-mail: zhanhao@grandall.com.cn Web: www.grandall.com.cn
Zhan Hao
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shanghai
International Tax
China’s IT attracts more US law firms
UK FSA fines manager in anti-money laundering failure
T
he UK Financial Services Authority (FSA) has fined a senior manager of Sindicatum Holdings, the financial advisory and asset management firm, nearly £20,000 for failing to have adequate anti-money laundering controls in place. Michael Wheelhouse, a board member and money laundering reporting officer at Sindicatum, was fined £17,500 , and the firm was fined £49,000. It is the first time that the FSA has fined a compliance officer. While the financial industry watchdog found no evidence of money laundering at Sindicatum, which was set up by former Nomura and JP Morgan bankers, the FSA said Sindicatum did not implement adequate procedures for checking or recording the identity of its clients, and that Mr Wheelhouse personally “failed to take reasonable steps to implement adequate procedures for controlling money laundering risk”.
British Virgin Islands and Australia Sign Tax Information Exchange Agreement The Australian Assistant Treasurer Chris Bowen and the Premier of the BVI Ralph O’Neal announced the signing of a Tax Information Exchange Agreement (TIEA) between Australia and the BVI. The TIEA provides for full exchange of information (EOI) on request in both criminal and civil tax matters and builds upon legislation in both jurisdictions, which already provides for mutual legal assistance in criminal matters. The TIEA reflects both governments’ shared commitment to implementing Organisation for Economic Cooperation and Development (OECD) principles of transparency and effective exchange of information, to eliminate harmful tax practices. Under the terms of the TIEA, Australia and the BVI have agreed not to apply prejudicial or restrictive measures based on harmful tax practices to residents or nationals while the TIEA is in force and effective. Further, Australia will remove any governmental references to the BVI as a ‘tax haven’ and will list the BVI as an ‘information exchange country’ in the Taxation Administration Regulations 1976. This will provide residents of the BVI with access to reduced withholding tax rates on distributions of certain income they may receive from Australian managed investment trusts. In addition to the TIEA, Australia and the BVI have signed an agreement for the allocation of taxing rights with respect to certain income of individuals, which will provide benefits to Australian and BVI residents. Australia and the BVI have also agreed to enter into discussions, when appropriate, to foster further co-operation in areas of mutual interest. By Debbie Annells, Managing Director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong www.azuretax.com, a member of AzureTax Group (Tel) +852 2123 9339 (direct line), (Main Line) +852 2123 9370, (Fax) +852 2122 9209 Registered with the Chartered Institute of Taxation for purposes of anti money laundering legislation.
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Debbie Annells
C
hina’s booming technology sector is attracting law firms from the US, with yet two more announcing office openings in the region. Detroit-based firm Miller, Canfield, Paddock and Stone opened its Shanghai office on 1 November after securing a licence from the government. The firm said it is capitalising on the region’s expanding market for technology and commercial work. “Shanghai is China’s technology gateway and is its largest commercial, financial, industrial and communications centre,” said the firm’s CEO Michael Hartmann. US-based Goodwin Procter, which until now has had offices only in the US, will open in Hong Kong in January, focusing its practice on technology companies, funds and private equity. “This global team will initially focus on our clients who are investing in India, China and other Asian centres of commerce,” said managing partner Regina Pisa. However, the firm is not stopping there. Once settled, it is to “explore additional opportunities for office locations in Asia as part of its long-term global strategy”, the firm said in a statement. This is one of several office openings by firms in the last month, with Bird & Bird and Loeb & Loeb
region
Orrick lays off Asia lawyers
C
iting economic pressures, US-based firm Orrick Herrington & Sutcliffe has cut approximately 10 staff in the firm’s Asian offices. In a round of redundancies which affects its global offices, the firm has laid off 40 associates and counsel in its real estate, structured finance and corporate practices. Ralph Baxter, Orrick According to reports, half of the number is from outside the US, and around a quarter of the redundancies will specifically affect the firm’s Asia practice. The firm did not disclose which Asian offices were affected, but was said to have made the decision three weeks ago before notifying associates of the redundancies. “Throughout 2008, we’ve done all we could to avoid today’s action: we’ve redeployed lawyers to different practices and we’ve cut expenses,” the firm said in a statement. “Unfortunately, our staffing levels in the affected practices still remained too high, given the economic environment we and our clients face.” In October, the firm picked up 27 former Heller Ehrman partners, but chairman Ralph Baxter said that that decision was made according to the economic value of the acquired partners. “All of the Heller lawyers who joined us were in practice areas that are litigation oriented. Compared with the
ISSUE 5.12
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Singapore 新交所公开上市守则之豁免情况及理由
also announcing their moves in response to growth in the technology industry. ALB
国内IT行业吸引众多美国律所
中
国的科技行业蓬勃发展，不断吸引美国律师事务所来此开拓业务。近 期，又有两家美国律师事务所宣布在中国成立代表处。Miller, Canfield, Paddock and Stone 律师事务所总部位于底特律，在获得政府颁发的执照后， 于11月1日成立上海办事处。 该事务所表示，目前正大力扩展该地区技术和商业领域的业务。律所首席 执行官Michael Hartmann表示：“上海是中国的技术门户，也是最大的商业、 金融、工业和通信中心。” Goodwin Procter 律师事务所总部位于美国，目前仅在美国设有分支机构， 该事务所将于明年一月在香港成立代表处，重点业务领域包括科技公司、基 金和私募股权。管理合伙人Regina Pisa表示：“在最初阶段，全球团队会重 点服务在印度、中国和其它亚洲商业中心投资的客户。” 但该事务所的目标绝不仅限与此。事务所在一份声明中表示，在业务稳 定后，将“积极寻求在亚洲其他地区成立代表处的机会，并将此作为长期全 球战略的组成部分。”上月内，有多家美国律师事务所成立新代表处，除上 述两家机构外，鸿鹄和乐博亦宣布其发展战略，以便充分把握技术行业的 增长机遇。
layoffs, it’s apples and oranges. They’re mostly partners, and they bring business with them,” said Baxter in an interview with AM Law Daily. The news follows a number of similar moves by law firms affected by the economic downturn, including White & Case, which cut its Bangkok office and laid off 70 associates. ALB
奥睿裁减亚洲律师
在
经济萧条的压力下，美国奥睿律师事务所亚洲区各代表处共裁员约10 名。奥睿在全球范围内裁减房地产、结构性融资和公司法业务领域的 40位律师和顾问律师，包括35名全职雇员。 事务所报告显示，半数裁员分布在美国以外的分支机构，亚洲区的裁员人 数约占总数的四分之一。奥睿并未披露哪间亚洲代表处受到裁员影响，但表 示，在通知被裁律师前三周已经作出决定。奥睿在一份声明中指出：“2008年 我们已竭尽全力，避免出现目前的情况：我们重新分配律师的业务领域，并 且削减经费。很不幸，在受到金融危机影响的业务领域中，相对目前的经济 现状和事务所客户情况，我们的员工人数仍然过高。” 今年10月，奥睿吸引27位海陆律师事务所的前合伙人加盟，奥睿主席Ralph Baxter表示，当时是根据这些合伙人的经济价值所做的决定。Baxter 在接受 《AM Law Daily》采访时表示：“所有加盟奥睿的海陆律师都在各自业务领 域安排有合适的诉讼案件。较之被裁减的律师，他们价值更大。这些律师 多数为合伙人，能够为奥睿带来业务。”在奥睿裁员的消息公布之前，已有 多家受经济下滑影响的律师事务所被迫裁员，包括伟凯律师事务所，该事 务所曼谷代表处裁员70名。
www.legalbusinessonline.com
2
008年10月8日，新交所公布了一项增强市场透明度的新举 措，即公开上市守则之豁免条款及上市公司可获得豁免的基 础。同时，新交所还公布了豁免规则下的条件，以使市场参 与者更好地理解新交所批准豁免的原因。
批准并授予豁免
上市守则规定了公司首期上市的标准和规范、信息披露政策，和其 他维护市场公平、公开的长期要求。然而有时候，由于实际需要和 操作限制，一些公司希望免除某些特定上市规则的合规义务。这些 豁免情况从本质上说大多是无争议的，也不用承担管理风险。最典 型的情形是，一些新上市公司请求延长它们第一次发布财务报告的 期限，尤其是当这些财政报告将在它们于新交所上市后立刻发布 的情况下。 新交所将在投资公众利益不受损害的前提下，在必要和被担保的 情况下，授予此类豁免。授予豁免的情形一般限定为期限调整或根据 其他特定情况做出。在某些情形下，新交所在授予豁免的同时会要求 公司满足一定条件或义务，以防止特定管理风险的产生。
豁免的详细披露
按目前的操作惯例，发行商必须通过新交所网站发布及时的信息披 露，并公告新交所授予其的豁免条款。在这些公告中，公司必须列 出被授予豁免的详细情形、请求豁免的原因和新交所要求的条件（ 若有）等。这些信息的披露保证了豁免的授予符合新交所统一的管 理模式。而其它面临相同处境的公司则可通过这些信息的披露，了 解到它们也可寻求类似的豁免。 为了使投资者和其他市场参与者更便捷地了解相关情况，新交所 已决定校对和整理上市公司的豁免情况，并通过新交所网站按季度 予以公布，首个季度从2008年7月至2008年9月计起。新交所会将 对所授予的豁免条款按规则（而非个别案例）加以分类，以使投资 者的焦点关注于授予豁免的逻辑和理由。被授予豁免的发行商身份 也将按具体规定予以公布，投资者可以就自身和发行商的公告相互 对照，以确定他们对请求豁免的内容和其他相关交易信息，是否需 要更详尽的披露。 为增强市场透明性和信息披露，新交所此前已 做出诸多努力，比如加强新公告模板的采用和 废止旧版，对主板公司引用“监察名单”，以及雇 员股份认购权的及时披露等。从而维护一个公 平、平等的市场环境。 賈文怡 企業融资部法律顧問 Ph: (65) 6322-2230 Fax: (65) 6534-0833 E-mail: joycejia@loopartners.com.sg
賈文怡
黄晓晖 企業融资部專員 Ph: (65) 6322-2285 Fax: (65) 6534-0833 E-mail: ngsiaohui@loopartners.com.sg
俊昭法律事務所 88 Amoy Street, Level Three Singapore 069907
黄晓晖
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Regulatory
►► LATERAL HIRES
PRC Foreign Exchange Control Regulations in Perspective
D
ue to the rapid economic development in the past decade, China has evolved from a country with limited sources of foreign exchange to a powerhouse with tremendous growth of foreign exchange reserves today. To alleviate the pressure emanating from significant build-up of foreign exchange reserves, the government now places emphasis on the inflow of foreign exchange in addition to the continuing monitoring of capital outflow as evidenced by the newly revised Regulations of the People’s Republic of China on Foreign Exchange Administration (“Regulations”). These new Regulations made certain changes to the former forex control regime. Some highlights as follows: The Regulations abolished the requirement for compulsory repatriation of foreign exchange income and provide that domestic enterprises and individuals can choose to transfer the foreign exchange income back to China or deposit them in overseas countries, subject to conditions that may be imposed by the State Administration of Foreign Exchange (“SAFE”). However, once foreign exchange is remitted into China for investment purposes, such forex must be used for specified purposes and cannot be used for re-investment. The Regulations specify that foreign exchange under capital accounts and the foreign exchange settlement funds shall be used for purposes approved by the relevant authorities. Administrative principles for outbound transactions are briefly described in the Regulations which provide the legal basis for implementing future policies over outbound activities. According to the Regulations, domestic institutions and individuals are, in principle, allowed to invest in offshore securities and derivatives products. Besides, financial institutions in banking industry may offer foreign direct commercial loans within the approved business scope. Other domestic institutions may also offer foreign commercial loans but subject to SAFE approval. SAFE is further empowered to monitor the flows of foreign currency, and their specific administrative powers and inspection procedures are listed in the Regulations. A range of foreign exchange related illegal activities are identified in the Regulations. Penalties for such illegal activities are specified (including confiscation of illegal income and imposition of fines). These changes to the foreign exchange regime reflect the government’s desire to rein in excessive inflow of foreign exchange, and most importantly, to achieve financial stability. The effectiveness of these measures, however remains to be seen.
Jeanette Chan, Partner May Chan, Hong Kong Solicitor Paul, Weiss, Rifkind, Wharton & Garrison Unit 3601, Fortune Plaza Office Tower A No. 7 Dong Sanhuan Zhonglu Chao Yang District, Beijing 100020 PRC Email: jchan@paulweiss.com Ph: (8621) 5828-6300 or (852) 2536-9933
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Name
Leaving
Going to
Practice
Location
David Chu
Heller Ehrman
Dechert
China practice
Hong Kong
Jiang Zhipei
Judiciary
Fangda Partners
IP
Beijing
Xue Tao
Bryan Cave
Jade & Fountain
Corporate, M&A
Shanghai
Yang Jun
Gide
Jade & Fountain
Corporate, M&A
Shanghai
Tony Chen
Bingham McCutchen Goldman Sachs
Sheppard Mullin
IP Corporate finance
Fried Frank
O'Melveny & Myers Dechert
LA/ Shanghai Hong Kong
Corporate, M&A
Hong Kong
Fried Frank
Dechert
Hong Kong
Conyers Dill & Pearman Wachovia Bank
Harneys
Corporate and securities Corporate Financial markets
Hong Kong
Jun He
Simmons & Simmons Kirkland & Ellis
China practice
Hong Kong
Heller Ehrman
Sidley Austin
Dispute resolution
Singapore
James Wood Liang Tsui Michael Hickman Paul Lau Sau-Wing Mak Li Xiaoyang Yang Ing Loong
various
Jade & Fountain
Jade & Fountain adds two partners Jade & Fountain announced that senior lawyers Yang Jun and Xue Tao joined the firm’s Shanghai office as partners. Yang Jun, formerly with Gide, started his legal career in 1997 and has worked with leading law firms in both China and France. His practice covers mainly dispute resolution, IP, employment and corporate. Xue Tao specialises in corporate and commercial law, M&A, real estate transactions and tax-related matters. Prior to joining Jade & Fountain, Xue Tao worked with leading Australian, American and Chinese law firms (including Blake Dawson, Bryan Cave and Jun He) for nine years. “Yang Jun and Xue Tao are seasoned PRC lawyers with extensive practice experience. We’re very pleased to welcome them aboard and we’re confident that they’ll make a significant contribution to our rapidly growing IP, tax, commercial real estate, and labour and employment practice. Their joining will also further strengthen Jade & Fountain’s leading market position in the practice areas of corporate and M&As” said Scott Guan, managing partner of Jade & Fountain.
Yang Jun
Xue Tao
九州丰泽新增两位合伙人
九州丰泽律师事务所宣布，两位资深律师杨峻和薛滔加盟上海总部，担任合伙人。 杨峻此前在法国基德律师事务所任职，1997年开始法律职业生涯，曾在国内外知名 律师事务所任职，主要业务范围包括争议解决、知识产权、劳动法和公司法事务。 薛滔律师主要从事公司及商业领域、兼并收购、房地产交易以及税收领域的相关法 律事务。加盟九州丰泽之前，薛滔曾在澳大利亚、美国和中国知名律师事务所（包括 博雷.道森.华隆国际律师事务所、博凯律师事务和君合律师事务所）工作达9年。 九州丰泽律师事务所管理合伙人管云翔表示：“杨峻和薛滔是经验丰富的中国律 师。能吸引他们加入九州丰泽，令人倍感欣喜，我们坚信，在业务快速增长的知识产 权、税务、商业房地产及劳动法领域，他们将做出巨大贡献。他们的加入还将进一 步巩固九州丰泽在公司法及并购领域的领先地位。”
Bingham McCutchen Jeanette Chan
Hong Kong
Sheppard Mullin
Sheppard Mullin’s new IP partner to split time between LA, Shanghai Former Bingham McCutchen IP and litigation expert Tony Chen has joined the Los ISSUE 5.12
NEWS | appointments >>
Angeles office of Sheppard Mullin as a partner in the firm’s IP practice group. Chen, who specialises in complex IP litigation, represents both US and international clients, but with a particular focus on companies founded by Chinese-Americans. Chen plans to split his time between Los Angeles and Shanghai. It is the fourth boost for Sheppard Mullin’s IP practice in recent times with the firm snaring patent litigator Joy Arnold, trademarks expert Hal Milstein and biotech clinical contracting head Blaine Templeman in preceding months. All three partners were previously with Heller Ehrman.
盛智新知识产权合伙人将往返洛杉矶和上 海执业
Bingham McCutchen 前知识产权和诉讼法律专家 Tony Chen 以合伙人身份加盟盛智律师事务所洛杉 矶办事处的知识产权业务团队。Chen 主要从事复杂 知识产权诉讼领域的法律事务，曾担任美国和国际客 户的法律代表，重点为美籍华人创办的公司提供服 务。Chen 计划往返洛杉矶和上海两地工作。 Chen 的加盟是盛智近期第四次扩大业务团队，前几 个月内，盛智相继将专利律师 Joy Arnold、商标法律专 家 Hal Milstein 和生物技术临床合同法律专家 Blaine Templeman 招至麾下。上述三位合伙人此前均在海陆 律师事务所任职。
former chief justice
Fangda Partners
Top IP judge lands at Fangda Partners A retired judge, who is one of the most distinguished experts in the area of intellectual property law, has joined Fangda Partners as senior advisor to assist in representing their clients. Dr Jiang Zhipei, the former chief justice of the IPR Tribunal of the Supreme People’s Court, recently retired after serving 18 years at the country’s highest judicial body since 1990. In his pursuit of a judge’s career, Jiang participated in China’s IPR law system reform and handled numerous IPR cases. He was named as one of the ‘50 Most Influential People in IP’ by Managing IP in 2004 and 2005. Jiang’s valuable experience and expertise in IPR cases will be a huge advantage to Fangda’s clients who need IPR and dispute resolution legal services. The firm’s intellectual property and dispute resolution team currently has over 40 attorneys including ten partners based in Shanghai, Beijing and Shenzhen.
著名知识产权法官加入方达律师事务所担 任合伙人
已退休法官蒋志培博士是知识产权法律领域最权威 的专家之一，现加入方达律师事务所，担任高级顾问， 协助事务所律师为客户提供服务。蒋志培博士曾担任 中国最高人民法院知识产权审判庭庭长，1990年进入 中国最高司法机关，任职18年后，于近期退休。 在蒋志培博士的法官生涯中，曾参与中国知识产权 法律体系的改革，并受理诸多知识产权案件。2004年 和2005年，《Managing IP》杂志曾将蒋志培博士评 选为“知识产权领域50位最具影响力的人物”。蒋志培 博士在知识产权诉讼方面拥有宝贵经验，对于需要知 识产权和争议解决方面法律服务的方达客户，定会从 中受益匪浅。方达律师事务所的知识产权和争议解决 团队现有超过40位律师，包括分布在上海、北京和深 圳的10位合伙人。 www.legalbusinessonline.com
Goldman Sachs
O’Melveny & Myers
Goldman Sachs lawyer joins O’Melveny & Myers Goldman Sachs’ former legal head James Wood has joined law firm O’Melveny & Myers as counsel in the corporate finance practice. Wood will be based in the firm’s Hong Kong office in the securities enforcement and James Wood regulatory counselling group. “I was looking to go back into private practice and O’Melveny provided me with a great platform,” he said. The appointment also provided the opportunity to work with old colleagues, he said, including Michael Moser and Colin Law, both of whom worked with him at Freshfields. The move is the third in-house to private practice transfer announced recently; the other two transfers also saw legal heads at Wachovia Bank and Rabobank move to Simmons & Simmons and KhattarWong, respectively. Wood’s change of address is also one of the many lawyer moves to Hong Kong this month. “I’ve seen a lot of people come and go in Hong Kong,” said Wood. “There is, however, a stable core of practitioners who seem to have been around for much of their professional lives. I understand that qualifying locally may become more difficult in the future. It will be interesting to see how this change may impact moves to Hong Kong.”
高盛律师加盟美迈斯律师事务所
高盛前法律事务主管 James Wood 加盟美迈斯律 师事务所，担任公司金融业务顾问律师。Wood 将加 入美迈斯香港办事处的证券执行与监管法律顾问团 队。此前，Wood曾在高盛亚洲公司法律部担任执行 总监，他表示，离开高盛主要因为自己渴望重返私人 律师事务所。 他表示：“我有意重返私人律师事务所，美迈斯给我 提供了十分理想的平台。在高盛工作期间，我经常与 美迈斯合作，高盛曾经从美迈斯挖走多位高级合伙 人。”他表示，进入美迈斯还能获得与老同事共事的机 会，其中包括Michael Moser 和Colin Law，这两位律 师均是他在富而德工作时的同事。 Wood成为近期第三位转投私人事务所的公司内 部律师；另外两位美联银行和荷兰合作银行的法律 主管分别投奔西盟斯律师事务所和凯德律师事务 所。Wood 亦是本月众多转赴香港工作的律师之一。 Wood 表示：“我注意到，香港的法律服务领域人事 变动比较频繁。但核心从业律师基本保持稳定，几乎 法律生涯的大多数时间都在香港度过。我深知，在未 来如果想从本地招募合格律师会更加困难。我很乐意 静观这种变化对律师转赴香港工作的影响。”
Conyers
Harneys
Harneys adds to Hong Kong office Offshore law firm Harney Westwood & Riegels (Harneys) has continued its expansion – after a ‘best friends’ tie up with Cypriot firm Aristodemou Loizides Yiolitis & Co, the firm has appointed former Conyers Dill & Pearman lawyer Paul Lau. Lau will be based in the firm’s Hong Kong office as partner in the corporate practice. At Conyers, Lau had spent five years in the Bermuda office before moving
to the Hong Kong office to advise clients on finance, M&A and funds transactions. He has also worked with Freshfields and GE.
Harneys 香港办事处扩编
离岸律师事务所Harney Westwood Paul Lau & Riegels (Harneys) 继续扩大业务 团队，继与塞浦路斯Aristodemou Loizides Yiolitis & Co律师事务所建立密切合作关系之 后，Harneys 又将康德明律师事务所前律师Paul Lau 招 至麾下。Lau 将在 Harneys 香港办事处担任合伙人， 负责公司法方面的法律服务。Lau在康德明律所工作期 间，曾在百慕大办事处工作5年，此后赴香港办事处任 职，在金融、并购和资金交易领域为客户提供服务。他 亦曾与富而德和通用电气合作。 Jun He
Kirkland & Ellis
Kirkland expands in China Kirkland & Ellis has expanded its China practice with the hire of partner Xiaoyang Li from Beijing’s Jun He. Li will initially be based in Hong Kong while the expansion of the firm’s China practice Xiaoyang Li is underway. The “strategic” appointment will boost Kirkland’s practice in China during the economic downturn, said the firm. The new hire will add to the firm’s hiring spree, which recently saw additions to the PE practice in Hong Kong.
凯易吸引前君合合伙人以拓展中国业务
凯易律师事务所吸引前君合律师事务所北京总部合伙 人李晓阳加盟，拓展中国法律业务。在凯易中国业务 拓展期间，李晓阳最初将在香港代表处工作。凯易表 示，在经济下滑的背景下，此次具有战略意义的任命 将推动凯易中国业务发展。 李晓阳的加入是凯易吸引人才计划的组成部分，凯 易近期还曾扩充香港私募股权业务团队。
Heller Ehrman
Sidley Austin
Sidley takes in Heller partners Sidley Austin has appointed former Heller Ehrman partner Yang Ing Loong to its Singapore office. Yang will focus his practice on arbitration and litigation across Asia, particularly in dispute Yang Ing Loong resolution issues in China. At Heller Ehrman, Yang was head of the dispute resolution practice in Beijing. Sidley also announced the appointment of five other ex-Heller partners, who are moving to the firm’s San Francisco and Washington, DC offices.
盛德吸纳海陆合伙人
盛德律师事务所吸引海陆律师事务所前合伙人杨炎龙 加盟，赴新加坡办事处任职。 杨炎龙将重点负责亚洲地区的仲裁和诉讼业务，尤 其侧重中国的争议解决事务。 在海陆工作期间，杨炎龙曾担任北京办事处争议解 决业务主管。
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NEWS | appointments >>
盛德亦宣布任命五位前海陆合伙人，将分赴盛德在 旧金山和华盛顿特区的办事处。 Wachovia Bank
Simmons
Simmons nabs Wachovia’s legal counsel Simmons & Simmons has appointed equity derivatives specialist Sau-Wing Mak from Wachovia Bank’s legal team. Mak, who will join the firm’s China financial markets group, was previously senior legal counsel of Sau-Wing Mak Wachovia Bank. Although based in Hong Kong, Mak will serve Simmons’ clients across Asia and is set to develop the firm’s equity derivatives practice. Mak will be aided in developing the practice by capital markets managing associate Kevin Tong, who she has worked with previously at Linklaters.
西盟斯成功挖得美联银行法律顾问
曾在美联银行法律团队任职的股权衍生专家SauWing Mak加盟西盟斯律师事务所。Mak曾在美联银 行担任高级法律顾问，将加盟西盟斯的中国金融市场 业务团队。尽管在办公地点位于香港，Mak将为整个 亚洲地区的西盟斯客户提供服务，重点发展事务所的 股权衍生业务。在Mak 发展事务所业务的过程中，资 本市场执行律师Kevin Tong将为其提供协助，Mak在 年利达任职时曾与Kevin Tong共事。
various
Dechert
Dechert scoops ex-Heller, Fried Frank partners Dechert has expanded its Hong Kong office with the capture of partners Michael Hickman and Liang Tsui from Fried Frank, and David Chu from dissolved firm Heller Ehrman. Since the opening of its Hong Kong office in January this year, the recent additions have boosted David Chu Dechert’s numbers to an 18-strong team across its greater China practices.”With a focus on Chinarelated transactions, such as M&A and foreign direct investments, Michael Hickman and Liang Tsui have practices that are very synergistic with our ever-expanding China practice,” said Dechert Liang Tsui chairman Barton J Winokur. “David Chu’s presence will significantly enhance our capability to assist our multinational clients with investigations relating to activities in Asia and cross-border litigation, and also will boost our ability to advise existing clients in the region on litigation in the US and Hong Kong.” Dispute resolution specialist Chu was promoted as a partner by Heller Ehrman Hong Kong at the time of Dechert’s Hong Kong opening. In the month in which rumours circulated of Heller’s collapse, Chu was to
be appointed as a representative in Proskauer Rose’s Beijing office. Chu will work in Dechert’s white collar and securities litigation practice, and is looking forward to contributing to the success of the practice.
Mike Hickman
前海陆和Fried Frank合伙人 加盟 Dechert
Dechert香港代表处规模近日扩大。新加入的律师分 别为来自 Fried Frank 的合伙人 Michael Hickman 和 Liang Tsui，以及已倒闭的海陆前律师David Chu。 Dechert 香港办公室成立于今年一月，至今已建 成拥有18位律师的业务团队，处理大中国地区的业 务。Dechert 主席Barton J Winokur表示：“Michael Hickman 和 Liang Tsui 的专业优势侧重与中国相关 的交易，如并购和外商直接投资，完全符合事务所扩 展中国业务的策略方向。” “David Chu 的加入令事务 所专业实力大增，可协助跨国客户进行与亚洲和跨境 诉讼活动相关的调查，亦可提升事务所为本地区现有 客户提供美国和香港诉讼方面的顾问服务实力。” David Chu 是争议解决法律专家，在Dechert 香港 办事处开业时，他被海陆律师事务所晋升为合伙人。 在业内传言海陆即将倒闭的时期，Chu 曾担任普士高 律师事务所北京办事处代表。Chu 将参与 Dechert 的白领和证券诉讼业务，他表示，愿为事务所的业务 成功积极贡献力量。
Firm Profile
Lifang & Partners
商标法究竟保护什么
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007年 10月 25日，杭州市中级人民法院 对杭州个体工商户赵华诉香港纵横二千 有限公司商标侵权案作出一审判决，认 定纵横公司在袜、围巾、领带、皮带等 服饰类商品上使用的“G2000”商标，侵犯了赵 华在这些商品上注册的“2000”商标权，并判令 纵横公司全额赔偿赵华所主张的2000万元索赔 金。此案创立了我国商标侵权赔偿金额的最高 纪录，在知识产权界引起巨大反响。 同年8月6日，国家工商行政管理总局商标评审 委员会裁定，对赵华在其“2000”服饰商标基础上 申请扩展注册的“G2000”服饰商标不予注册。12 月25日，商评委复审决定：纵横公司在服饰商品 上申请的“G2000”商标予以初步审定。 本案中，不同法律实施部门针对下述两个争 议焦点问题，作出了明显矛盾的裁判结论： 其一，尚未注册的“G2000”服饰商标，究
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竟属于赵华的“ 2000 ”服饰商标的权利范围， 还是属于纵横公司“G2000”服装商标的权利 范围？杭州中院认为赵华注册的“ 2000 ”服饰 商标的权利范围，已涵盖到使用于服饰商品 上的“G2000”商标。但商标局和商评委引证 纵横公司已注册的“G2000”服装商标作为驳回 赵华注册申请的理由，认为在服饰类商品上 使用“G2000”商标，应当属于纵横公司注册 的“G2000”服装商标的权利范围。 其二，对于服饰类商品上标注的“G2000”商 标，消费者究竟会将其与纵横公司的“G2000” 服装商标建立联系，还是与赵华的“ 2000 ”服 饰商标建立联系？杭州中院认为是前者，商 标局和商评委却认为是后者，故不能允许赵 华申请的“G2000”服饰商标获得注册，否则将 会造成其与纵横公司“G2000”服装商标的混淆 和误认。
针对同一部商标法，不同执法部门在实践中 的理解和适用竟然产生如此巨大的反差。其原 因在于，我国商标法虽已实施二十多年，但实 践中对于商标法一些基本法理问题仍然存在误 解，在一些具体的案件处理中，商标侵权判定 往往被简单化为纯粹的标识比较，机械地套用 商标法第52条所规定的侵权判定规则，而对于 混淆与否、诚实信用、善意恶意等直接涉及商 标法立法本源的基本价值判断则被忽视，其后 果往往导致商标法的实施发生 扭曲和变形。 蒋洪义 立方律师事务所高级合伙人 电子邮件: hongyijiang@lifanglaw. com 电话: 86-10-64096099 传真: 86-10-64096260 86-10-64096261
蒋洪义
ISSUE 5.12
NEWS >>
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Firm Profile
Thomson Reuters Legal
Thomson Reuters Legal: leveraging knowledge for competitive advantage Thomson Reuters Legal’s CEO in China Stephen Yao speaks to ALB China about the company’s mission, commitment and major offering, Westlaw China, to the local legal professionals
A
s a clear sign of its commitment to China, Thomson Reuters Legal, the world’s leading provider of information solutions to legal and other business professionals, has appointed Stephen Yao as chief executive officer in China. Yao, born in Taiwan, holds an MBA degree in the US. He has helped a number of multinational companies, including Dow Jones Telerate and Standard & Poor’s Fund Services, expand successfully in Asia and China in the past two decades. Yao’s leadership and indepth local knowledge are highly regarded in
►► Key features of Westlaw China Westlaw China • Spider monitors and collects information from thousands of official sites each day • Current Awareness database is updated five times a day • 通过先进的Spider 科技每天在数以千计 的官方网站上获取最 新法律信息。 • 万律时讯每日五次 更新，最新法律资讯 第一时间传递 • Databases cover all types of laws and regulations from all levels of governments • 万律数据库内容完 备，包含全方位的法 律信息 • Categorisation and indexing methodology facilitate legal research • 先进完善的分类及 索引系统帮助用户提 供检索效率 • Legal topics help users understand how laws are interpreted and applied • 法律专题帮助用户 了解重要法律的解释 与适用情况
Market pain points Quick and timely updates of legislation and regulations 市场需要最新的法律 信息
Laws and regulations collated into a single source 需要完备的法律信息 集成
Consistent categorisation Personalised search by topic/category 需要统一的分类标准 及个性化搜索 Interpretation of laws and regulations 需要了解法律的解释 与适用
the business community. In his current role, Yao is leveraging his solid experience and expertise to assist the group in forming and implementing development and growth strategies in China. “Thomson Reuters Legal is committed to provide quality services and products to the local market, and support the development of local legal profession,” said Yao. “Our mission is to contribute to transforming China towards a rule of law society and be actively involved in building a legal infrastructure that can adequately facilitate China’s fast growing economy, and increased levels of corporate and commercial activity.” Thomson Reuters Legal has been serving China’s legal professionals since 2002, but the successful launch of Westlaw China in May 2008 marked a milestone in the group’s development in China and globally. Westlaw China is an online legal database and a powerful online legal research tool customised for the legal professionals in China. It is built with the familiar user interface, intuitive search tools and editorial enhancements of Westlaw, recognised as the benchmark for authoritative legal information and analysis by legal professionals around the world. “There is a multi-layer legislation and regulation system in China, and the legal system is evolving at a fast pace. A lack of unified scheme for indexing and retrieving the database and information means that coming to grips with the laws and regulations in China is a big challenge for legal professionals,” said Yao. “So, Westlaw China has come to the forefront and fills a major gap in the marketplace. It is based on the proven global success of Westlaw, built and developed by local legal experts, and designed to be the single credible source of legal information relating to the practice of law in China.” Westlaw China is set to benefit not only the local legal industry, but also the international legal and business community. A large, dedicated editorial team, consisting of legal
We are looking for a legal information manager who will be responsible for content management and acquisition. To apply for this position, please send a copy of your resume to hr.china@thomsonreuters.com.
Stephen Yao
experts and professional legal translators, ensures Westlaw China provides global access to the most up-to-date law cases and legislation, with useful legal-quality English translations and analysis that make the law understandable. “Western companies are continuing to expand their business in China, and increasingly international law firms come to realise that Chinese law is important to the future of their practice,” said Yao. “Comprehensive and efficient legal information services are now needed more than ever before. Westlaw China will be an important resource for the information they need to deftly navigate China’s complicated legal landscape,” said Yao. As China becomes increasingly tied into the global economy, its legal industry is at the forefront of legal developments in the Asia-Pacific region. Thomson Reuters Legal’s strong commitment to China, supported by its expertise, means it will play an increasingly important role in the market. For more information on Thomson Reuters Legal and Westlaw China, please contact: 刘培 Shirley Liu 汤森路透法律信息集团Thomson Reuters Legal Tel: (8610) 5969 5100 ext. 8037 Fax: (8610) 5969 5069 Westlawchina.marketing@thomsonreuters.com www.thomsonreuterslegal.com.cn www.westlawchina.com
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ALB Fast
FEATURE | ALB Fast 10 >>
领 先 之 星
China’s fastest-growing firms 2008
ALB China singles out the top 10 performers by percentage revenue growth in its annual Fast 10 list
2
008 was a challenging time for many businesses – and a less than exceptional year for law firms. The global economic downturn occurring in the latter part of the year resulted in less legal work and a marked decline in the number of big deals that came through. For the first time in five years, quite a few firms have experienced a stall in fee income, or a slight drop. But it was not all doom and gloom – as this year’s Fast 10 survey results show, many firms still enjoyed an increase in revenue, albeit at a slower growth rate than last financial year. Dacheng, for example, last year’s fastest-growing firm in China with a growth rate of over 100%, dropped to the number three spot in this year’s list. But the firm’s 72% increase in revenue for the 2007/08 financial year is regarded as extraordinary. During the period, however, the firm also expanded its geographical reach even further by opening offices in Zhengzhou, Tianjin, Shenzhen, Xining, Xiamen, Yinchuan, Haikou and Hangzhou. It now boasts a massive 17
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offices across the country – plenty more than its nearest rival. Among the 10 fastest-growing firms, some have used mergers to bulk up, such as V&T; some adopted aggressive recruitment strategies to explode into new practice areas or regions, such as Dacheng, Grandall and Broad & Bright; and some achieved stellar performances by pursuing organic growth. In the ninth spot in this year’s list, Qingdao-headquartered Deheng, is a standout example of the last category. In the 2007/08 financial year, Deheng’s fee-earner headcount decreased by 12%, while its turnover rose by 25% over the last financial year, precluding a solid increase in revenue per fee-earner. The statistics from the survey are also a reflection of just how dynamic and competitive this market really is, as the average growth rate of Asia’s Fast 30 firms during the same period is 15%. However, it is a clear sign that the fast-growing firms are starting to worry about the impact of the global financial crisis and the slow-down of China’s economy. Several of them told ALB China that their fee income was affected
►► CHINA’S 10 Fastest-growing firms (by revenue) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
Guangdong Guanghe (94%) V&T (77%) Dacheng (72%) Zhenghan (60%) Zhonglun (46%) Grandall Legal Group (40%) Llinks (37%) Tahota (35%) Shandong Deheng (25%) Broad & Bright (21%)
►► Last year’s results
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
Dacheng Jincheng & Tongda Zhonglun Zhenghan Brighteous Guantao Fangda Partners Alpha & Leader Grandall Legal Group Zhonglun W & D
by delayed payments from clients who are experiencing cash-flow problems and how, in the current economic climate, they had to offer them discount rates. ISSUE 5.12
FEATURE | ALB Fast 10 >>
►► ALB’s fastEST-growing firms IN The rest of Asia HONG KONG • DLA Piper • Hammonds • JSM • Sidley Austin • Simmons & Simmons INDIA • Luthra & Luthra INDONESIA • BT Partnership • Hutabarat Halim & Rekan • Melli Darsa & Co JAPAN • Anderson Mori & Tomotsune • Atsumi & Partners • Nishimura & Asahi KOREA • Bae Kim & Lee • Yulchon MALAYSIA • Azmi & Associates SINGAPORE • Ashurst • Gibson Dunn & Crutcher • Khattar Wong • Rajah & Tann • Stamford Law • WongPartnership TAIWAN • LCS & Partners THAILAND • Hunton & Williams For full details of Asia’s 30 fastest-growing firms, please visit www.legalbusinessonline.com
►► Methodology
►► Revenue or profitability?
One of the many ‘Catch 22’ issues confronting law firms in slower economic times is whether increasing partner or fee-earner headcounts necessarily yields an increase in firm revenue – much less, profitability. Indeed, the latter is very much the untold story in the overview of the fastest-growing firms. As events of the last few months alone have demonstrated, growth for growth’s sake and growth as a means of insulation or diversification are all ‘each-way bets’ in the current environment. Sensible measured growth, however – a growth that ensures consistency in quality of advice, solid internal systems and the like – may be a more effective investment.
Guangdong Guanghe Managing partners: Multiple Revenue growth in 2007/08: 93.8% Fee-earner growth in 2007/08: 28% Number of partners: 21 Number of lawyers: 145 Head office: Shenzhen Branch office: Zhuhai
Summary: Headquartered in Shenzhen, this south-east heavyweight has seen a meteoric rise. Under the guidance of a young but astute management team, including the highly regarded Peter Tong and Frank Shi, the firm has grown solidly across the board. And it hasn’t just been growth for growth’s sake – Guanghe has opted for organic growth rather than the standard growth through acquisition. In the 2007/08 financial year, the firm elevated 22 of its own to the partnership while reinforcing its junior ranks with a number of new fee earners and associates. But it is the firm’s revenue figures that are most impressive. Guanghe claims to have increased revenue over the same period the year before by almost 94% – racking up total fees of RMB164m in 2007 – making it one of the top performers in the region. The firm, which figured prominently in ALB China’s feature on China’s largest firms, is ideally placed in the booming Special Economic Zone to continue its strong growth in 2009.
The Fast 10 list is based on a survey distributed to over 100 law firms in China. Partner, fee-earner and revenue figures were supplied by the firms themselves. All information is accurate to the end of October 2008. Only firms who participated in the survey were considered for the final ranking.
Although the 2009 economic outlook is uncertain now, the entrepreneurial partners at the 10 fastest-growing firms are still confident about their future. They are young, well qualified, dedicated, eager to expand and still hungry for growth. Most firms believe that they can keep up the performance in the next 12 months, and some are actively looking to increase in size by hiring more lawyers and partners. It is little wonder that, with their optimism, the firms on ALB China’s Fast 10 have been such a success. www.legalbusinessonline.com
Tong Xin, managing partner
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FEATURE | ALB Fast 10 >>
V&T Managing partner: Xu Meng Revenue growth in 2007/08: 84% Fee-earner growth in 2007/08: 77% Number of partners: 48 Number of lawyers: 114 Head office: Beijing Branch offices: Shanghai, Shenzhen
Summary: The year 2007 was a remarkable one for V&T, as it saw the firm boost its size, its geographical presence and its business scope exponentially. A strategic decision to merge with Guangdong Wanshang law firm (which has offices in Shenzhen and Shanghai) at the end of 2007 created a full-service firm with over 200 legal professionals and supporting staff across three major commercial centres. In early 2008, a team of lawyers led by senior partner Wang Jihong joined the firm from a well-established construction and infrastructure practice in Beijing. The addition has assured V&T a solid performance with an 84% increase in revenue during the period of the survey. The firm has set itself an ambitious goal for further integration and expansion of its multinational client base.
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ISSUE 5.12
FEATURE | ALB Fast 10 >>
Dacheng Managing partner: Wang Zhongde Revenue growth in 2007/08: 72% Fee-earner growth in 2007/08: 76% Number of lawyers: 598 Head office: Beijing Branch offices: Shanghai, Wuhan, Sichuan, Jinan, Chongqing, Hainan, Harbin, Tianjin, Yinchuan, Zhengzhou, Shenzhen, Xining, Xiamen, Haikou, Hangzhou
Summary: It’s not every financial year that a law firm can claim to having opened eight offices. Nor is it every financial year that the same one can say it has added 80 partners to its roster, increased its fee-earner headcount by 76% and its revenue by 72%. However, these are all achievements of which Beijing-headquartered mega-firm Dacheng can justifiably boast. The firm opened offices in Zhengzhou, Tianjin, Shenzhen, Xining, Xiamen, Yinchuan, Haikou and Hangzhou during this period and now numbers a massive 17 offices across the country – considerably more than its nearest rival.
www.legalbusinessonline.com
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FEATURE | ALB Fast 10 >>
Zhenghan Managing partner: Ni Wei Revenue growth in 2007/08: 60% Fee-earner growth in 2007/08: 25% Number of partners: 15 Number of lawyers: 38 Head office: Shanghai
Summary: Generally when the economy is down, litigation and insolvency work tends to pick up, and that’s why business at Zhenghan is robust and the firm is well placed in this market. Its practices range across a number of sectors, including corporate, real estate, IP and banking and finance, and its dispute resolution team is among the leaders in the field of commercial litigation. It has represented a number of large financial institutions in some of the most high-profile litigation in Shanghai. The litigation team’s strong performance holds up the firm’s business well, with income between July 2007 and June 2008 up by 60%. Several partners and senior counsel newly arrived – including corporate finance veteran Wang Liqing and Gao Jingmei, a judge of Shanghai Higher People’s Court – have also contributed to its solid revenue growth.
Zhong Lun Law Firm Managing partner: Zhang Xuebing Revenue growth in 2007/2008: 46% Fee-earner growth in 2007/2008: 36.23% Number of partners: 96 Head office: Beijing Branch offices: Guangzhou, Shanghai, Shenzhen, Tokyo
Summary: Despite losing a number of key personnel to rival firms this year, Zhonglun posted impressive growth figures for the 2007–08 financial year. It welcomed 25 new recruits at partner level but also lost 13 partners. According to the firm, however, the loss wasn’t enough to stop it posting revenues of RMB436m, a 46% increase over the previous year. A joint winner of the Real Estate and Construction Deal of the Year at the ALB China Law Awards in 2008 for its role in the record-breaking IPO of Soho China, the firm will no doubt look to more lateral hires in the year ahead to maintain its strong growth. A plan to open offices in Wuhan and Hong Kong is on the firm’s agenda for 2009.
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ISSUE 5.12
FEATURE | ALB Fast 10 >>
Grandall Legal Group Managing partners: Multiple Revenue growth in 2007/08: 40% Fee-earner growth in 2007/08: 30% Number of partners: 93 Number of lawyers: 450 Offices: Beijing, Chengdu, Guangzhou, Hangzhou, Hong Kong, Kunming, Shanghai, Shenzhen
Summary:
Wang Weidong, chief managing partner of Beijing office
www.legalbusinessonline.com
What started out in 1998 as the union of Beijing-based Michael Zhang & Associates, WanGuo Law Firm in Shanghai and TangRen Law Firm in Shenzhen, Grandall has grown into a legal leviathan. It not only celebrated its 10th anniversary this year, but ventured forth into Hong Kong by opening a dedicated office there. These activities bespeak impressive growth. In the 2007–08 financial year, the firm added 12 partners to its roster – an increase of nearly 9%. The number of fee-earners increased by 30% allowing the firm to reap a revenue increase of 40%. And while It already boasts an impressive network of domestic offices, it has made no secret of its desire for further expansion, with sources close to ALB China noting that the openings of branch offices in Ningbo and Fuzhou are believed to be imminent. The firm’s capital markets and M&A expertise could be the key to further expansion – Grandall was the top legal adviser to successful A-share listings in this period. Look for this firm to consolidate its strong position organically in the year ahead.
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FEATURE | ALB Fast 10 >>
Llinks Managing partners: Multiple Revenue growth in 2007/08: 37.4% Fee-earner growth in 2007/08: 10.7% Number of partners: 9 Number of lawyers: 45 Head office: Shanghai Branch offices: Beijing Summary: Llinks has executed its lightning-fast growth in a different way. Partner numbers at the firm remained stable throughout the 2007/08 financial year, but it was extremely acquisitive at the lower levels, increasing the number of fee earners by almost 11% over this period. It now boasts a dedicated corpus of 45 lawyers, all of whom were responsible for increasing revenue by almost 38% – to a figure that bespeaks the firm’s high-calibre business acumen. The period also saw it achieve a number of ‘firsts’. Llinks was instrumental in sealing the first deal involving a partial tender offer for the shares of a PRC-listed company and the first announced takeover of a PRC-listed company using comprehensive approaches, including share transfer by agreement, targeted placement and a tender offer: SEB Internationale’s strategic investment in Shenzhen-listed Zhejiang Supor. In addition the firm also acted on the first authorised actively managed listed Chinese equity fund with a close-ended structure in the Hong Kong–HSBC China Dragon Fund’s global offering and HKEx listing. Christophe Han, managing partner
Tahota Managing partner: Cheng Shoutai Revenue growth in 2007/2008: 35% Fee-earner growth in 2007/2008: 20% Number of partners: 26 Number of lawyers: 139 Head office: Chengdu Branch offices: Beijing, Shanghai, Shenzhen, Hong Kong (representative office) Summary: Once referred to as the ‘new kid on the block,’ Tahota has now well and truly established itself as one of the premier firms in China’s west – and was recognised as such when it was named Western Law Firm of the Year at the ALB China Law Awards in 2008. Recording a 50% spike in the number of partners in this period, the firm has experienced similarly strong growth on the fee-earner front, bolstering ranks with a 20% increase in the number of lawyers. Revenue figures tell a similar story with it realising a record year and a 35% increase in that area. Furthermore, the firm not only kicked off its southern ambitions by opening the allied Guangdong Shen Tahota law firm, but its longstanding agreement with Hong Kong firm Woo Kwan Lee & Lo, and entry into the Sino-Global Legal Alliance earlier this year, give it unprecedented access to the international firms vital to consolidate growth in the years ahead.
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ISSUE 5.12
FEATURE | ALB Fast 10 >>
Shandong Deheng Law Firm Managing partner: Luan Shaohu Revenue growth in 2007/08: 25% Fee-earner growth in 2007/08: -12.1% Number of partners: 37 Number of lawyers: 89 Head office: Qingdao Branch office: Shanghai, Beijing Summary: For the seventh consecutive year, Deheng is ranked number one by revenue in Shandong province, and this is the second time the firm has made it into ALB China’s Fast 10 list. Despite a 12% decrease in the number of fee earners, its turnover rose by 25% over the last financial year, precluding a solid increase in revenue per fee earner. After founding the Sino-Global Legal Alliance with eight other leading local firms and Lovells in September 2007, the firm’s international business group has experienced fast expansion of its multinational client base and practice areas. Its strong performance has cemented its position as the Northeast China Firm of the Year at the 2008 ALB China Law Awards and shows promise as an emerging market leader in the north.
www.legalbusinessonline.com
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FEATURE | ALB Fast 10 >>
Broad & Bright Managing partners: Multiple Revenue growth in 2007/08: 21% Fee-earner growth in 2007/08: 35% Number of partners: 10 Number of lawyers: 24 Head office: Beijing Branch office: Shanghai
Yuan Changchu, managing partner
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Summary: Whichever way you look at it, it’s been an impressive year for Broad & Bright. Not only did the Beijing-based firm branch out with the opening of a Shanghai office, but its partner headcount also increased by 30%. It brought seven new lawyers on board – a major factor behind revenue growth of 21% in this period. But the quality of deals coming through the door has also contributed to its strong showing in this year’s ALB China Fast 10. Broad & Bright successfully represented Yamaha Motor of Japan against companies including Zhejiang Huatian Industrial Co. for trademark infringement. The appeal for compensation was upheld by the Supreme People’s Court and RMB8.3m was awarded. The firm also represented Singapore New Media Corp in acquiring its state-owned equity and increasing its registered capital – the first transaction of its kind in China. In addition, it represented Keenward in acquiring an equity stake in the owner of the Shanghai World Financial Center – the world’s tallest building – inspiration perhaps, as the firm seeks to climb to new heights in 2009. ALB
ISSUE 5.12
FEATURE | international expansion >>
Route to international success A continued surge in the overseas listings and outbound investment of large enterprises has driven an ambitious armada of domestic law firms to establish an international presence. ALB China reports on the rationale for these overseas offices and their effect on the bottom line
PRC firms’ meaningful overseas presences*
►► Hong Kong • • • • • • •
I
Jun He King & Wood Duan & Duan Grandall Jinmao Chen & Co Guangdong Huafa
►► Tokyo
• Zhong Lun • King & Wood (in association with Miyake & Yamazaki)
►► Singapore
• Jade & Fountain
n September and October this year, senior managers at the Industrial and Commercial Bank of China (ICBC), one of the world’s largest commercial banks by market value, had a very busy schedule flying across oceans and continents to take part in the opening ceremonies of the organisation’s new overseas branches. Within just two months, the bank expanded its global presence to Sydney, Doha, Dubai and New York.
►► Silicon Valley
►► Seattle
• Duan & Duan
►► Los Angeles
• Jincheng & Tongda
• King & Wood
• • • • •
King & Wood Jun He Guanghe Richard Wang & Co Shujin
►► London
• Zhonglun W & D
*At least one resident partner is required to make an overseas office a “meaningful presence”.
Jiang Jianqing, ICBC’s chairman, noted at the New York opening ceremony that the growing economic, trade and investment relations between China and the US have laid the foundation for the development of the financial sector and generated new demands for banking services. The legal sector is a similar story: as the trade and investment relations between China and the US are in the process of strengthening, a greater
“As PRC firms are increasingly involved in large cross-border transactions, it’s necessary for some from the top tier to establish a presence in important international jurisdictions” Kirk Tong, Jun He 38
►► New York
►► Other ways of expanding internationally Opening offices overseas may not be in the best interests of all firms and many have opted to expand their global network and facilitate international business by other means, such as • Joining a global alliance, such as Lex Mundi, Meritas and TerraLex • Establishing business consultant firms overseas, instead of opening a branch office • Forming strategic alliances with international firms • Signing memoranda of cooperation with foreign firms in different countries
demand for PRC legal services is created. So, on 9 September, King & Wood, the country’s largest law firm (by number of lawyers), celebrated the long-anticipated launch of its New York office. In an issued statement, it said that its close relationships with many American companies and law firms, coupled with growing outbound investment by its wellestablished China-based clients, has led it to establish a branch office in New York. ISSUE 5.12
FEATURE | international expansion >>
Recent developments at ICBC, one of King & Wood’s longstanding clients, have justified the firm’s strategic decision to expand internationally. It was instructed by the bank to advise on a number of significant cross-border transactions, with deal highlights including ICBC’s record-breaking US$21.9bn IPO and dual listings in Shanghai and Hong Kong, as well as its acquisition of Bank Halim Indonesia and the US$5.5bn strategic investment in South Africa’s Standard Bank Group. King & Wood’s new office is headed by senior partner Zhao Bing, with two other partners and two associates on staff, and serves as a local presence in dealing with many of the firm’s American clients and partners. It also facilitates the international business of clients from its home jurisdiction. However, before the arrival of this legal giant, a number of other PRC firms had already established a presence there. Jun He opened its New York office in 1993, making it the first PRC firm to expand overseas. Shanghai firm Richard Wang & Co and Shenzhenbased Guanghe and Shujin also have offices in Manhattan. “As PRC firms are increasingly involved in large cross-border transactions, it’s necessary for some of the top tier to establish a presence in important international jurisdictions,” said Kirk Tong, partner at Jun He. In 2006, Zhong Lun jumped on the bandwagon of international expansion by opening a branch office in Tokyo, with the permission of the Japanese Ministry of Justice. It was the second one to be set up in Japan by a PRC law firm, as King & Wood’s Tokyo office was the first, established in 2005 in association with the Japanese firm Miyake & Yamazaki. “Our expansion into Tokyo is mostly driven by client needs,” said Zhang Xuebing, managing partner at Zhong Lun. “To provide our globalising clients in China with better services and support, we need to follow them abroad. Meanwhile, it also enables us to advise Japanese companies that are investing or going to venture into China, timely and on their home ground.” Zhang noted that currently the latter function of the Tokyo office carries more weight than the former, but as Chinese companies become stronger and invest more in Japan, the first www.legalbusinessonline.com
►► Hong Kong: a strategic location
Seven domestic firms have so far established a branch office in Hong Kong after receiving the requisite permission from the Law Society of Hong Kong. Currently, they are registered as foreign law firms and can only advise on PRC law. Hong Kong is quite different from other jurisdictions, and it is regarded as the most likely location for PRC firms to gain a share of the local market and be able to advise on local legal issues in the foreseeable future. King & Wood has publicly expressed its plan to merge with Hong Kong firm Arculli Fong & Ng as soon as the laws that apply in the PRC and Hong Kong permit and the conditions for such a full merger are satisfied. Arculli Fong & Ng has formed a strategic alliance with King & Wood and is currently in association with the firm’s Hong Kong office. Duan & Duan is another firm with ambition to gain a foothold in Hong Kong’s legal market. Even before its Hong Kong branch was set up in September 2006, 30% of its annual revenue was generated by advising on Hong Kong-related transactions and investments. After the Hong Kong office was established, Duan & Duan experienced an increase in instructions from both inbound and outbound clients. As a long-term plan, the firm is to convert its Hong Kong office into a local firm after satisfying certain residency and other requirements. Thereafter, it will hire local lawyers and partners and advise on Hong Kong law, and aim to increase its income ratio from its Hong Kong-related practice – currently 30% – to over 50%. “In the next 10 years, I hope to see the main role of our Hong Kong office as assisting Chinese clients to invest in Hong Kong and set up companies there. These clients are increasingly regarding Hong Kong as a bridge – a gateway to enable them to invest globally,” said Gong Xiaohang, the Chief Director of Duan & Duan, who now divides his time between Hong Kong and Shanghai.
Meanwhile, it is clear to Gong that the Hong Kong office will also play an important role in helping channel Hong Kong investment into China’s emerging cities such as Chongqing and Tianjin. If Hong Kong is the most convenient and practical place for domestic firms to gain international standing, why is it only seven that have yet done so? The requirement of obtaining approval from the Ministry of Justice and the Law Society of Hong Kong is one of the main reasons, and the cost of setting up an office in Hong Kong and maintaining it is another. The total cost of Duan & Duan setting up its Hong Kong office and getting it up and running was around HK$4.5m, which equals the average revenue of most Shanghai law firms in 2007. And it wasn’t until the second half of this year that it started making a profit. “To open an office in Hong Kong requires a tremendous amount of talent, time and money,” said Gong, “and a firm must be structured as a true partnership with sophisticated management to be able to make such a huge investment and commitment.” In terms of the billing rates in Hong Kong, Gong noted that although the market average for a partner is HK$6,000 per hour, his firm’s Hong Kong partners usually charge HK$4,000 per hour, considering they are allowed to advise only on PRC law. This is lower than the Hong Kong local rate, but is slightly higher than the Shanghai average of HK$3,000. Though some firms are more ambitious, most – like Duan & Duan and King & Wood – are content just to have a ‘foot on the ground’ playing more of a liaison and marketing role in relation to the mainland offices. “We don’t want to develop our Hong Kong office to a full-blown ‘presence’,” said Kirk Tong, partner at Jun He, “because we don’t plan to advise on Hong Kong and international law in cross-border transactions – and don’t intend to compete with well-established players there.”
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FEATURE | international expansion >>
“The Tokyo office has created more opportunities for us to service Japanese companies, and it has also contributed to an increase in the total volume of advisory work by Zhong Lun as a whole. In that sense, the huge value of the Tokyo office has undoubtedly justified its existence” Zhang Xuebing, Zhong Lun Law Firm
function will become more important. After a decade, most leading PRC firms have developed their domestic geographic build-out, and are starting to explore global opportunities. “Global expansion has become an important part of leading firms’ longterm growth strategy,” said Zhang. Zhong Lun plans to set up offices in Hong Kong, the US, Europe and Korea in the next two years.
The bottom line issue
Having an overseas office can give firms an advantage in attracting not only potential clients but also talented lawyers – as well as help develop closer relationships with leading firms in that jurisdiction, which are possible sources of referral work. However, there are also problems and challenges associated with running offices overseas. Firms have to commit to real estate and take on legal staff, a new tax regime, a new currency and a new business culture without knowing with any certainty what return there will be. The cost of maintaining an overseas office, particularly in developed countries, is very high. After learning of the recent collapse of two wellrespected US firms with over 100 years of history, Heller Ehrman and Thelen, all firms need to watch their bottom line carefully. Yet, given the current function and nature of the Chinese firms’ overseas offices, they have an extremely low profit margin – or even a negative one. 40
“The main functions of our New York office are marketing and client liaison. Primarily, it provides PRC legal advice and serves as a facilitator for our practices in China,” said Tong. “Therefore, the profit margin in our domestic offices is much more significant than that of the one in New York.” There are two partners and three associates based in Jun He’s New York office. Both partners are admitted to the New York bar, so they can handle some US legal matters on their own, but mostly they advise clients on PRCrelated issues in the US. “We don’t want to grow our New York office into a large-size US practice, so the New York office won’t compete with US firms. Instead, we work with US firms to ensure our clients receive quality legal advice in large crossborder transactions,” said Tong. As Chinese firms learned when venturing overseas, it isn’t easy to gain traction and get noticed in a crowded, well-developed market, especially in the UK, US and Hong Kong. So the strategy of working alongside ‘local friends’ has been widely adopted by firms with offices outside China. “Currently, PRC firms open offices overseas with the aim of developing relationships with other law firms, finding clients and keeping them, and searching for work to send home,” said Zhang. “This business model makes it very difficult for these offices to balance cost and revenue.” Two years after its establishment, Zhong Lun’s Tokyo office still hasn’t
reached profitability, but Zhang is expecting it to generate sufficient revenue to cover its operating costs in 2009. Nevertheless, in addition to the two partners and five lawyers in the Tokyo office, Zhong Lun has strong Japanese and Korean practice groups based in its Beijing and Shanghai offices. And these groups, based in China, have benefited from the increasing amounts of inbound work that are introduced and referred by the Tokyo team. “The Tokyo office has created more opportunities for us to service Japanese companies, and it has also contributed to an increase in the total volume of advisory work by Zhong Lun as a whole,” said Zhang. “In that sense, the huge value of the Tokyo office has undoubtedly justified its existence.” Although many domestic firms have started their ventures overseas, there are significant obstacles to them becoming like Clifford Chance – truly multi-jurisdictional law firms. These include the country’s civil law system, restrictions on hiring foreign lawyers and entering into any partnerships with foreign firms, and the level of sophistication in local firms’ partnership and management. However, local legal professionals are generally bullish about the prospect of international law firms of Chinese origin emerging in the next decade. So, some pioneers who have established a meaningful presence in key overseas jurisdictions may well be the international firms in the making. ALB ISSUE 5.12
Profile
Blancpain
乾坤之作，辉煌紫禁城
˿˿ 宝珀表，故宫博物院首枚典藏当代腕表 闪耀紫禁城的交接仪式
2008年10月20日，故宫博物院钟表馆，揭开了世界 腕表史上具有里程碑意义的一幕：瑞士宝珀与故宫 博物院的典藏腕表交接仪式将在这里盛大举行。故 宫博物院常务副院长李季先生与宝珀表全球销售副 总裁Andre Meier先生共同见证了这一经典时刻。一 枚名为“宝珀乾坤卡罗素”的特制腕表，将成为故宫 博物院建院以来，首枚典藏的当代腕表, 文物收藏 编号：新204357。
天工杰作，中华元素与瑞士工艺的完美合一
瑞士宝珀，是世界上第一个钟表品牌，作为制表业 的开山鼻祖，它以数百年的文化积淀与精湛的手工 制作工艺，奠定了其在世界表坛的尊宠地位。早在 1735年，宝珀表开创了世界上第一间制表工坊，昭 示着瑞士钟表业亦由此从“匠人时代”跨入“品牌时代” 。而正是1735年，中国乾隆皇帝登基，成为中华“康 乾盛世”的重要标志。正是这样一个诞生巧合，让宝 珀手表与中华的璀璨文明种下了不解之缘。 在200多年后，宝珀根据中华与故宫文化的特 点，采用大量的先进工艺，耗时1年，量身定制了 这枚意义非凡的腕表，并为他命名：“宝珀乾坤卡罗 素”腕表。而它的设计正如它的名字一样洋溢着中国 风：在表盘上，设计师以“中华太极”为主形，将阴 阳与时刻相融，给予人们海纳乾坤的感受；在腕 表的背面则铭刻着：“1735”、“乾隆”、“BLANCPAIN” （宝珀）的字样，寄托了宝珀在200多年来与中华 文明结下的深深友谊。底部故宫博物院的图案经过 精雕细琢显得格外典雅精致，周边更以古典精致的 中华琉璃瓦为装饰。大量的中国元素，在宝珀的演 绎下折射出光芒魅惑。当腕表走动，半镂空的刻度 盘现出迷人的浮动卡罗素，让人在每一处细节，每 一枚零件都能让人感受到宝珀的非凡工艺。细细品 味，这枚腕表就像一幅“中西合璧的机械画卷”。
乾坤卡罗素，带来惊世意义
几百年来，中华紫禁城以其雄浑的建筑风格与精妙 的布局设计赢得了全世界无数的赞叹。如今，宝珀 将紫禁城的风华浓缩于“宝珀乾坤卡罗素”腕表，以 同样美誉全球的瑞士制表工艺赋予紫禁城与中华文 明更新更美的内涵。此次瑞士宝珀故宫腕表交接活 动的举行，使宝珀成为百年故宫近代史上，故宫博 物院建院以来第一次收藏的当代腕表。它代表了瑞 士腕表品牌与中华艺术之巅的第一次亲密携手，代 表了中华艺术殿堂对宝珀工艺的最高肯定，更代表 了宝珀品牌对中华文明的真情美赞。在“宝珀乾坤卡 罗素”轻轻走动的幕后，我们看到了中国与瑞士人民 的友谊正源远流长。此举，必将在世界钟表史上留 下光辉的一页。
附一： 内外兼修，神奇分钟式同轴卡罗素
当我们对“乾坤卡罗素”的外表发出由衷赞叹的同 时，我们也不能忽略“乾坤卡罗素”腕表的极致“内 在美”。经过专家考证：早期的卡罗素要花几分钟 www.legalbusinessonline.com
才能完成一轮周期运转，而BLANCPAIN宝珀发明 的卡罗素却准确地以60秒的时间走过同样的距离。 甚至其结构组件、零件精度都挑战了手表制作和艺 术审美的极限。更为重要的是：自1892年，制表工 匠Bahne Bönniksen 发明卡罗素以来，没有任何钟 表制造商拿来对其进行改进更新，直到宝珀以世 界首创的分钟式同轴卡罗素技术完全成功颠覆了 人们的固有偏见和传统思维。它用事实向世人证 明：卡罗素一样可以拥有1分钟一圈的完美速度 （分钟式）；一样可以让平衡摆轮至于框架的中 央（同轴）,使其更加坚固；一样可以做到便于欣 赏、佩带的腕表大小。宝珀的卡罗素还有两股动 力线路，分别提供给擒纵系统及笼罩系统，确保 运转得更加稳定。 本款腕表采用了卡罗素225机芯：可自动上弦， 包含262枚零件，可进行100个小时的储能。它还 拥有一个直径为43.5毫米的白金表盘，半镂空的 刻度盘更增添了其美丽的工艺外观。透过刻度盘, 内部的齿轮组、支架和夹板都一目了然。在12点 的位置，浮动卡罗素神奇的旋转机构完全暴露在 我们面前，非常迷人。6点位置显示动力储存的状 况，由一根指针在“+”、“-”符号之间的圆弧形来指 示。在9点种位置，则以不同长度的双指针来指示 日期。也正是这样的完美工艺，才使宝珀获得故 宫博物院的独宠。
成为我国最大的国家博物馆。 故宫博物院在紫禁城的一些宫殿中设立了绘画 馆、陶瓷馆、青铜器馆、明清工艺美术馆、珍宝 馆、钟表馆和清代宫廷典章文物展览等，收藏有 大量古代艺术珍品，据统计共约150万件，占全国 文物系统馆藏文物总量十分之一强。故宫博物院是 中国收藏文物最丰富的博物馆，也是世界著名的古 代文化艺术博物馆，其中很多文物是绝无仅有的无 价国宝，是群星荟萃的中华文化殿堂。 故宫里有一座奉先殿 原来是清朝皇帝祭祀祖先 的地方。如今，这里已成为故宫博物院属下的钟表 馆，这里陈列着皇宫收藏的各式各样精美的钟表。 这些钟表大多制造于十八、十九世纪，其中不少是 舶来品：来自英国、法国、瑞士、日本等国；还有 一部分是国产钟表，由清宫内务府造办处以及广 州、苏州等地的中国钟表匠人制造。其实，当年清 宫收藏的钟表远远不止这些，清朝多位帝王都深爱 着西洋钟表艺术，其中对钟表最痴迷的要算乾隆皇 帝了。他不遗余力地收集各种奇钟异表，多次下旨 海关官员，让他们不惜重金购买西洋钟表。那时皇 宫的每个角落几乎都摆放着钟表，滴答、滴答的钟 鸣声响彻整个紫禁城，成为一道靓丽的风景。
附二：紫禁城与故宫博物院钟表馆
故宫位于北京市中心，旧称紫禁城，曾经是明清两 代的皇宫。始建于明永乐四年（1406年），建成于 永乐十八年（1420年），距今约有600年的历史。 它占地面积72万平方米，共有各式宫室8千余间， 是世界上规模最大、保存最完整的宫殿建筑群， 被称为“殿宇之海”，气魄宏伟，极为壮观。明清两 代先后有24位皇帝居住在这里。1924年北京政变 后，被废黜的清末代皇帝溥仪出宫，1925年成立了 故宫博物院。解放后，故宫进行了大规模的修缮，
媒体垂询，请联络: BLANCPAIN宝珀上海办事处 张淼小姐/佘佳琳小姐 电话: 021-24125265/5228 传真: 021-24125005 E-mail: suki.zhang@sh.cn.swatchgroup.com/ tudy.she@sh.cn.swatchgroup.com
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FEATURE | Canadian law firms in Asia >>
Canadian firms in Asia: A question of resources They were some of the first international legal firms to arrive, but what is the current status of Canadian legal firms in Asia? Toronto-based ALB journalist Christine Otsuka finds out what business is being transacted between Asia and the land of the maple leaf
C
anadian legal firms have a long history in Asia. Take China, for example. Canadian legal firms were some of the first international firms to arrive in the early 1980s. But in 2008 the picture is different. Only two Canadian legal firms retain an on-the-ground presence in Asia. Yet a lack of Canadian law firm offices does not mean the firms are not doing business in these parts. They are just doing it differently. Improvement in local legal service offerings and the possibility of
conducting business remotely from Canada has driven this reduction in offices. However, demand for Canadian legal expertise, particularly in light of Canada’s strong resource sector, is still strong. It is an attractive market for Asian companies looking to shore up their access to raw materials. “We’ve, arguably, the most advanced energy infrastructure in the world. We’ve world-class oil and gas reserves, and a well-known, well-respected political system. People abroad, including in the Middle East, have
►► Canadian LAW Firms with Offices in Asia Firm
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Partners
Lawyers
Offices in Canada
Offices in Asia
Offices worldwide (total offices)
Asia practices
Blake, Cassels & Graydon
296
569
5
Beijing, Shanghai
10
China practice India practice
Stikeman Elliott
217
524
5
Sydney
8
China practice India practice
enormous respect for Canadians on all fronts,” says Michael Black, partner in Heenan Blaikie’s Calgary office. The numbers bear this out. Take China Petroleum and Chemical Corp’s (Sinopec) decision to purchase Canadian petroleum company Tanganyika Oil. The deal, worth an estimated C$2bn, is being handled by Canadian legal firms Stikeman Elliott and Cassels Brock. And it is not all about China. India is also a hot spot for Canadian legal firms, and the Middle East and Gulf states also loom large. ALB talked to some of the top firms in Canada to find out where the demand is coming from and what they are doing to meet it.
Last one standing “There aren’t too many Canadian law firms left in Asia,” says Robert Kwauk, the office managing partner of Blake, Cassels and Graydon’s (Blakes) Beijing Office. Kwauk has been in the business about 20 years and says two decades ago there were 15 Canadian corporate law offices in Asia – in Hong Kong, China, Taiwan, Singapore and Japan. By Kwauk’s count, there are now only two Canadian corporate law offices in Asia – Blakes’ Beijing office, which opened 10 years ago, and Davis and Company’s Tokyo office. “There used to be about six or seven Canadian firms in Beijing. All the big guys and some mid-size Vancouver firms, but they’re all gone – and I think that the numbers have everything to do with it.” The same is true of Hong Kong, says Kwauk. It is not the “gold mine” it used to be. Not surprisingly, the sophistication and training of Asian law firms in the past decade or two has made the marketplace more competitive. And because the main business for Canadian law offices in Asia used to be Canadian clients looking to invest or set up shop in Asia, many Canadian firms have packed up and gone home. Not true for Blakes. Its presence in Beijing – three Canadian lawyers and five Chinese lawyers at any given time – is small but stable. For Blakes, ISSUE 5.12
FEATURE | Canadian law firms in Asia >>
CHINA ►► Major deals between Canada and China Date
Description
Ongoing
China Petroleum and Chemical Corp (Sinopec) has put in bid to purchase Tanganyika Oil Company Ltd, a Canadian petroleum company.
US$2bn
2 July 2008
China’s Jinduicheng Molybdenum Group, Ltd. and Northwest Nonferrous International Investment Company, Ltd make deal for limited acquisition of Canada’s Yukon Zinc Corporation
US$104m
Davies, Ward, Phillips & Vineberg acted for acquirers
11 March 2008
Jinchuan Group, China’s largest producer of nickel, cobalt and platinum group metals and a major producer of copper acquired Tyler Resources Inc
US$214m
Davies, Ward, Phillips & Vineberg acted for acquirer
25 January 2008
China Minmetals and Jiangxi Copper Company Ltd acquired Canada’s Northern Peru Copper
US$455m Davies, Ward, Phillips & Vineberg acted for acquirer; Borden, Ladner & Gervais acted for seller
being the only Canadian law firm with an office in Beijing gives it an advantage, says Kwauk, because it constantly has its finger on the pulse of what is happening. “It helps us identify clients, identify deals and more efficiently serve the clients we have,” he says. “As we know so many of the local firms here, we’re able to pick and choose in accordance with the needs of the client, the ability of the law firm and the lawyers, the budget, the sophistication and the degree of work required, so we’re able to shop around a lot better than the other firms that don’t have an office here.” Canadian clients looking to invest in Asia still make up the majority of the work for Canadian lawyers. Blakes’ Beijing office generally helps Canadian clients and other international businesses investing in China by negotiating deals, structuring transactions, getting them through the approval process and, if local legal opinion is needed, hiring a Chinese law firm. Kwauk says the office handles 10–12 such matters a year.
A changing presence In the past five years, Chinese statecontrolled public companies have been investing systematically in Canada’s natural resources. Today, a handful of M&A deals a year is an important focus of Canadian law firms’ Chinese practice groups. Kwauk credits China’s Minmetals taking a run at Noranda, one of Canada’s oldest mining companies in 2004 for getting the ball rolling. “After that, we started to see three to five transactions every year,” he says, adding that, while some may www.legalbusinessonline.com
Value
be quite small, others are multi-billiondollar deals. As the small pool of Chinese M&A deals is a more lucrative side of the Asia-Canada equation, Canadian law offices dedicated to the Asian market are beginning to switch their focus, and that means much of the work can be accomplished from home. Take Davies, Ward, Phillips and Vineberg (Davies), for example. By its account, it was the first North American firm to open an office in Hong Kong. “We did it even before the American firms, in 1971,” says Peter Mendell, a partner in Davies’ Montreal office and co-chair of the firm’s China practice group. The Montreal-based firm had an office in Hong Kong before Toronto and has had offices in Beijing, Singapore, Taipei and Hong Kong, but has since closed all its Asian offices. “In those years there was no Chinese law, and no North American firms of the type and sophistication we’re familiar with today that we were prepared to deal with, so if you wanted to be doing work with China, you really had to have your own office,” says Mendell. The combination of intense local and foreign competition for Canadian inbound business into China has made an office in Asia less profitable for Canadian firms, says Mendell, explaining that Davies made the decision to focus on referring its Canadian clients who wanted to do business in China to reputable Chinese firms like King & Wood and Jun He, and instead create a China practice based in Canada that has a dozen Canadian lawyers dedicated to helping Chinese clients make deals in Canada.
Law firm Stikeman Elliott acted for acquirer. Cassels; Brock & Blackwell acted for seller
“What we decided to do, as Canadian business lawyers who saw the future as representing the big Chinese state-owned enterprises in Canada, was focus on outbound work from China to Canada,” says Mendell. “To have a small rep office of three or four lawyers made no sense because they’re not the ones doing the deals in Canada, anyways. Instead, we have lawyers who have made a very positive commitment to travelling to China on a very regular basis.” Like Davies, Stikeman Elliott at one time had an office in Hong Kong. Now, however, its primary clientele are Asian companies looking to invest in Canadian companies. And for Stikeman Elliott, one of the top M&A firms in Canada, China is “a significant area of practice”, says David Lefebvre, a partner and chair of Stikeman Elliott’s China practice group. “We’ve been quite successful particularly at getting inbound [to Canada] M&A and commercial work. It’s certainly a part of our practice we’re looking to grow, but we’re happy with the amount of work we’ve received.” Stikeman Elliott’s Asia practice is not limited to China. It has also seen demand from countries like Vietnam, Malaysia, Thailand, Singapore, Hong Kong and Indonesia. The firm started its China practice in 2004, around the time the Minmetals deal signalled the beginning of a wave of takeovers by Chinese companies. “I think [opening the practice] was responding to the opportunity created by Chinese and Indian clients becoming more global and making a 43
FEATURE | Canadian law firms in Asia >>
larger number of acquisitions outside of their home countries,” says Lefebvre. Canadian firms have deployed preemptive strategies of meeting stateowned enterprises (SOEs) before in the hope that, if SOEs decide to do deals in Canada, the firm will be front of mind. The firms expect, of course, to continue to work for Chinese clients, on ongoing commercial work on their acquisition or investment. And while most of the work is in the M&A/energy & resources space, Mendell says he can see this model spreading to the financial and manufacturing markets as well.
Deals and growing demand Some of the largest investments made by Chinese companies in Canadian companies, including CNPC’s acquisition of PetroKazakhstan and CITIC Group’s investment in JSC KazMunaiGas, enable natural resource asset access outside of Canada. Stikeman Elliott is currently working on a C$2bn deal for China’s Sinopec International Petroleum Exploration and Production Corp in its takeover bid for Calgary-based Tanganyika Oil – a Canadian company with assets in Syria. It is one of the largest deals by a Chinese company that Canadian law firms have seen. Stikeman Elliott has been involved in two out of the three Chinese acquisitions of Canadian resource companies worth over C$1bn. Demand from Asia is increasing. “It’s been growing year-over-year,” Lefebvre says, “as Asian companies have become large global players and expanded their acquisitions and therefore done 44
“What we decided to do, as Canadian business lawyers who saw the future as representing the big Chinese state-owned enterprises in Canada, was focus on outbound work from China to Canada” Peter Mendell, Davies, Ward, Phillips & Vineberg business in foreign jurisdictions. Going the other way, the world has globalised and outsourcing of manufacturing or services has grown in appeal, so you have a number of Canadian firms who have outsourced their manufacturing or services to Asia. I only see that increasing, too.”
India rising A Conference Board of Canada report notes that by 2050 India will be the world’s third-largest economy, with a GDP approaching US$30trn. India is already the worldwide outsourcing hub, and many Canadian law firms first became acquainted with India when Canadian companies sought advice on moving technology management to India. But times have changed. After a decade of strong domestic growth, Indian companies rely on foreign acquisitions as their primary growth mechanism, according to a report entitled ‘India Looks Outward’ written by Dee Rajpal and Sheel Parekh of Stikeman Elliott. Indian companies are not facing the same challenges as their North American and European counterparts in obtaining financing to acquire overseas companies. Domestic Indian
lenders such as ICICI and HDFC are relatively unscathed by the liquidity crisis afflicting global business. With Indian corporations and markets growing faster than many of their Western counterparts, many US and European private equity funds are increasingly happy to help finance the Indian M&A frenzy. Such M&A activity may accelerate if large numbers of distressed assets become available at affordable prices in the socalled “credit-crunch” economies. Last year saw a number of big foreign acquisition deals. India’s focus on acquiring assets and continuing interest in resources bodes well for Canadian firms, considering Canada’s prevalence of oil and gas, mining and natural resources, and the presence of Canadian industry leaders in the chemical, automotive parts and information technology industries. At least nine of Canada’s top legal firms have developed formal practice strategies for India. Trade between Canada and India is already C$4bn pa.
A natural fit In 2004, Rajpal, a Stikeman Elliott partner and co-leader of the India ISSUE 5.12
FEATURE | Canadian law firms in Asia >>
Initiative, launched the firm’s dedicated India practice group. “That particular region is one that’s very active and is looking to foster relationships with Canada and wants to do transactions into Canada or service Canadian clients,” says Rajpal. “It’s just a natural fit.” For Sunny Handa, co-head of the India practice group at Blakes, being on the ground in India is important. “We’re a large law firm and we realise that our future is in getting to the shores of other countries, before the folks show up here,” Handa says. “Initially, it was thought that the outbound work would be the only work,” he continues. “But now we’re finding that the larger deals are actually the ones coming from India to Canada.” “The idea is to really establish those relationships with India law firms, investment banks, big corporate, such that you’re the ones they’re going to use
www.legalbusinessonline.com
when there’s a Canadian issue,” adds Handa. “We try to make sure that we are tied to trade missions that go to India so we can be right there at inception when people start to talk about a deal and let them know that we’re out here.”
Varied interests Indian companies are attracted to Canada’s rich natural resources, and Stikeman Elliott has acted on major acquisitions by Mittel, Tata and Essar of Canadian steel companies. But India’s needs are varied, and so is the work Canadian firms India practices can expect to win. “The reality is the work’s a lot of commercial stuff, a lot of advising clients on joint ventures, sometimes it’s just a matter of helping Canadian clients find Indian counsel and then acting as a liaison for that India counsel on this end,” says Handa, who notes part of his firm’s practice is devoted to keeping up with the state of
affairs in India and revaluating their list of India firms to which they will refer North American clients. Rajpal says Stikeman Elliott has recommended a handful of top India law firms: Amarchand Mangaldas, AZB & Partners and J Sagar. With nine Canadian law firms having dedicated India practices, the competition is stiff. Most rely on their reputation, some go for added-value. “Connecting Indian clients with Canadian businesses that you think they might want to talk to has been a very effective means for us, and once you start to do good turns for companies they reciprocate,” says Handa. The future looks promising, he adds. “The Indian conglomerates, the large corporates, are going to continue to look outside the country to diversify,” he says. “We’re going to continue to see Indian companies show up on our shores more and more.” ALB
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FEATURE | In-house Legal Summit >>
ALB In-house Legal Summit: Beijing 2008
Over 250 delegates from companies and organisations across a wide range of sectors attended ALB In-house Legal Summit Beijing 2008 on 6 November to discuss the role of legal counsel in globalising businesses and in the current global financial turbulence
“F
inancial crisis” and “global challenges” were the two most frequently used phrases at the ALB Beijing In-house Legal Summit 2008. The Beijing Summit was the final in ALB’s in-house summit series for 2008 and was the largest of the year. The one-day event lined up seven workshops, 16 main speakers and 11 exhibitors, and attracted more than 250 delegates from nearly 100 organisations and companies to attend. Zhang Wei, head of the legal department of the Industrial and Commercial Bank of China (ICBC) headquarters, opened the summit with a keynote address on the evolving roles and responsibilities of in-house legal departments during the globalisation of their companies. He pointed out that while a large number of Chinese companies have become stronger and wealthier and are actively expanding their businesses and markets into overseas jurisdictions, the role and the nature of work in in-house departments of these companies are changing from a single-jurisdiction focus to a multijurisdictional approach. Never before has the role these in-house lawyers play assumed such importance. Zhang shared his
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department’s experiences, saying that today his legal department has to understand and ensure companies are compliant with the legal environment and regulatory framework in all different jurisdictions that they are operating in; they must assist companies in managing an increasingly sophisticated array of multijurisdictional legal risks and issues; and they must prevent a single legal matter in one jurisdiction from developing into a world-wide public relations crisis. Responding to the evolving roles and global challenges, Zhang and his department have adopted a number of measures which have been proven effective. In addition to the continuation of improving the quality and management of the in-house departments, and educating the board of executives and senior management to recognise that the in-house legal function is a core part of the business operation, Zhang also highlighted – during his speech – the importance of working with external counsel. “External counsel are increasingly being instructed to help in-house departments overcome gaps in capacity and expertise in high-stakes transactions,” said Zhang. “Their unique specialist expertise and resources are very valuable to the healthy development of globalising companies.” ALB ISSUE 5.12
FEATURE | In-house Legal Summit >>
In-house summit workshops Antitrust: Grandall Legal Group (Beijing)
Mergers & Acquisitions: Broad & Bright
With the newly effected AntiZhan Hao Monopoly Law as the hottest topic in the global business community, Grandall Legal Group’s Beijing executive partner Dr Zhan Hao and partner Wang Xiaoping provided an insightful look into this new legislation and the challenges in the enforcement of the AML.
With China’s legal and regulatory Lawrence Guo framework governing M&A activity becoming increasingly sophisticated, Broad & Bright partners Lawrence Guo and David Wang gave a comprehensive review of recent development in the legal regime affecting M&A transactions, and detailed a number of effective solutions and strategies to get deals done.
CCH China With the aim of ‘creating value for professionals’, CCH China designs and publishes legal products specifically for the local market.
LexisNexis
Intellectual property: Lifang & Partners
Customs & international trade: Sandler, Travis & Rosenberg Xie Guanbin
Both multinational and domestic companies are increasingly making strategic use of IP as a competitive differentiator. Lifang & Partners, a specialist, full-service IP law firm, shared their extensive industrial expertise and market knowledge to help companies come to grips with China’s evolving IPR legal environment.
Partner in charge of Asia practice Jiang at Sandler, Travis & Rosenberg, an Zhaokang international trade and customs law firm, Jiang Zhaokang took a close look at customs, international trade and supply chain compliance issues concerning domestic companies and how to formulate strategies that take advantage of international trade rules.
Run Ming Law Office The art of legal practice: Zhonglun W&D Law Firm
Employment law: TransAsia Lawyers
Isabelle Wan
One of the most popular workshops in this year’s Beijing in-house legal summit. Employment law expert Dr Isabelle Wan, head of the employment law practice in TransAsia, highlighted the major reforms affecting employers’ rights and obligations under the new, more regulated labour and employment-law regime.
Lu Hada
With extensive experience in assisting large companies manage their legal risks, Dacheng’s associate Lu Hada and senior partner Zhang Hong outlined key processes and approaches in the development of effective legal risk management plans in enterprises. Several case studies were provided for a deeper understanding of the subject matter. www.legalbusinessonline.com
With offices in Beijing and Shanghai, Run Ming is committed to providing total business legal services. The firm’s core partners are experienced lawyers with over 20 years in legal practice.
Senior partner of Zhonglun W&D Wang Hao provided a unique Wang Hao opportunity for in-house lawyers to understand the role and function of external counsel. He covered a range of topics including how external counsel can add value to in-house teams, and the relationship between in-house and external counsel.
Deheng Law Firm
Associate sponsors
Legal risk management: Dacheng Law Offices
LexisNexis is a leading provider of comprehensive and authoritative legal, news and business information and tailored applications. It offers China’s professional community a wide array of products and services.
With 230 legal staff, including 37 partners, and offices in Beijing, Jinan and Shanghai, Deheng has been recognised as one of the fast growing firms in China and a leading player in the Northeastern region.
China Legal Career CLC has an international network that spans the US, UK and Hong Kong, and specialises in placing legal professionals for corporations and law firms, including general counsel, legal directors, counsels, partners and associates. Focusing on the upper echelons of the legal market, CLC counts Wall Street, Magic Circle and Fortune 500 companies as regular clients.
Thomson Reuters Legal Westlaw is one of the world’s primary online legal research services for lawyers and legal professionals and is a part of West and Thomson Reuters. It has had a successful global launch of Westlaw China, a new database with primary and secondary sources on China.
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Sign off >> H2 not looking up
T
he credit crunch is now old news, but the devastating impact on the economy continues to batter law firms and other businesses alike – and recent research indicates that the second half of the financial year will see layoffs continue. A poll of the top 50 UK law firms reports that almost one-quarter of these firms are considering layoffs this financial year, with 10% revealing that redundancies in the next six months are probable. Five firms surveyed said they were anticipating job losses by the end of the financial year, admitting that job cuts were ‘likely’ or ‘very likely’. An additional 12% said cuts were ‘possible’, and not one firm ruled out redundancies altogether. It’s not hard to believe when you consider that almost one-third (32%) of the top 50 firms have now cut jobs – the latest being Hammonds, which launched a redundancy consultation in early November. Clifford Chance, DLA Piper, Eversheds and Simmons & Simmons are among those reporting redundancies in the past few months.
Eversheds tightens belt on travel spending
F
irms are feeling the pinch as the economy continues its downward spiral, and Eversheds in particular has recently taken to cutting back on travel costs to relieve some financial stress. The firm recently initiated a kind of travel lock-down, with all practice groups – from partner to support staff – required to gain approval from an appointed a line manager for any travel within the firm. Reports indicate that client-related travel will not be affected, and the cutback is being balanced out by increasing the use of video and telephone conferences by staff – with positive results. According to the firm, the restrictions have allowed it to cut travel expenses by up to 25% over the last few months in certain practice areas. Other firms are also catching on and have implemented cost-cutting measures. Olswang for one recently announced it would be cancelling its staff Christmas bonus and weekend trips as a result of hard economic times.
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Top 10 family-friendly US firms revealed Y
ale Law Women group has compiled a list of the best firms for work-life balance in their third annual survey on family-friendly firms. The poll, which organised around 100 top firms who were required to answer a 35-question survey, weighted and ranked responses, giving kudos and special attention for extending parent-leave programs, offering on-site child care, allowing lawyers to work from home or fostering leadership opportunities for women and minorities. The following firms were identified by the report as top of the range for facilitating work/life balance: • Arnold & Porter and Covington & Burling – Washington, D.C • Debevoise & Plimpton and Kramer Levin Naftalis & Frankel – New York • Mintz Levin Cohn Ferris Glovsky and
Popeo and WilmerHale – Boston • Perkins Coie in Seattle; Dorsey & Whitney – Minneapolis • Gibson, Dunn & Crutcher – Los Angeles • Kirkland & Ellis – Chicago Arnold & Porter no doubt upped their family-friendly status by allowing employees to take a leave of absence of up to three years, while the firm continues to pay bar membership fees, and assists with continuing legal credits. In-house day care is available for parents who choose to return to work at the firm. Another mentioned firm – Debevoise – counts more than 50 lawyers as working part-time for the firm and reports that 12 of their partners have worked part-time at one point or another. Finally – some good news amid all the doom and gloom of the financial crisis.
Equine ecstacy turns into Aussie achiever’s viticultural victory
S
ome people seem to have 48 hours in their day compared with the 24 us mortal folk have to make do with. Take leading Sydney litigator Brian Agnew, for example. Not content with being the founder of one of Sydney’s more successful mid-tier law firms, Moray Brian Agnew & Agnew, Agnew decided he fancied breeding a Melbourne Cupwinning horse – duly acheived with Subzero in 1992. Then four years ago he decided to make a foray into the world of wine, purchasing the historic Audrey Wilkinson vineyard in the Hunter Valley two hours north of Sydney. Sticking to his winning ways, Agnew has just received the New South Wales
2008 Wine of the Year Award for the 2006 Audrey Wilkinson Hunter Valley Museum Reserve Semillon. Agnew is definitely, one would think, a man to avoid in court.
ISSUE 5.12
LONDON • PARIS • HONG KONG • SINGAPORE • BRISBANE • MELBOURNE • PERTH • SYDNEY • AUCKLAND • WELLINGTON
伦敦
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巴黎
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香港
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新加坡
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布里斯本
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墨尔本
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柏斯
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悉尼
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奧克兰
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威灵顿
Here are some reasons to smile In-house Leadership Role (14 yrs pqe) Beijing Would you like to lead major billion
dollar deals in China for a Fortune 500 company? You will be responsible for the legal issues of a key business unit in a major international energy company and will manage a legal team. Incumbents need at least 14 years of corporate and commercial legal experience, preferably in a multinational or top law firm. Fluent Mandarin and English are essential. Ref: 7142/CB
Senior Legal Counsel (10 yrs pqe) Shanghai Large multinational seeks
someone to assist the GC covering the North Asia region. Role will analyze legal risks, develop the legal department and support compliance efforts. Ideally, candidates have solid experience gained in-house from international MNCs, as well as private practice background. You must be able to lead a team and have superior communication skills in oral and written Chinese and English. Frequent travel will be expected. Ref: 7864/CB
Senior Legal Counsel (7 yrs pqe) Beijing A fortune 500 US company seeks a Senior Legal Counsel to be based in Beijing. The position will advise and support junior lawyers. The qualified applicant must have at least 7 years legal experience gained either from top tier law firms or fast paced multinational companies. You will need to have solid experience in handling general corporate and commercial transactions, as well as possess sound IP knowledge. LLB/LLM from a leading PRC or overseas university is required, and excellent English and Mandarin language abilities are essential. Prior legal experience from an IT company is highly desirable. Ref: 7961/CB
Private Practice Managing Partner Shanghai Our client is one of the pioneering US law
firms in China. It currently seeks a Managing Partner to lead its practice. An accomplished senior lawyer with gravitas and a strong track record in leading transactions in the securities, venture capital, M&A and private equity areas gained at an internationally recognised firm is desired. You should have US admission and a strong reputation as a market leader. Native Chinese language skills are needed along with excellent interpersonal and communication skills, a dynamic personality and strong interfacing ability. Ref: 7967/CB
Partner Shanghai or Beijing Do you have a strong portable China-focused corporate/M&A business? A dynamic US law firm with a growing China practice is seeking to expand its team. The China practice has strong support from the US offices. You may be located in Shanghai or Beijing. Ref: 6423/CB Junior Partner Shanghai Fabulous opportunity to support this practice’s growing presence in China. The firm is a major player in the US market and invites a Junior Partner to help further build out its stunningly successful platform in China. The ability to develop strong relationships focusing on both outbound and inbound China work in the areas of capital markets, venture capital and private equity is imperative. If you are seeking to advance your career, this firm offers a great platform and an excellent deal sheet of China transactions. Ref: 7983/CB
Project Finance Lawyer Shanghai Well regarded practice is recruiting a
Project Finance Lawyer to work in an expanding team on deals in China and across Asia. Strong academics and US qualification are needed. The work will cover all aspects of project finance and will be mainly PRC focused. You must have strong project finance skills and Mandarin language skills to be considered. Ref: 7974/CB
PRC Legal Consultant (3-5 yrs pqe) Shanghai A top tier US firm seeks an
experienced real estate lawyer in Shanghai. You will need to have 3-5 years in real estate financing and FDI either gained from an international law firm or a top tier PRC firm. You should hold a LLB or LLM from a premiere Chinese or foreign University. PRC lawyer’s license essential. Excellent English and native Mandarin are required. Ref: 7548/CB
Corporate M&A Lawyer (3-4 yrs pqe) Shanghai Join this Magic Circle firm’s corporate M&A team in its Shanghai office. You will need to be qualified in a commonwealth jurisdiction or have a US degree and have experience from leading international firms. The duties encompass both domestic and cross border corporate and M&A transactions and private equity. Chinese language skills are required. Ref: 7793/CB China Head of Business Support (5 yrs exp) Shanghai Do you have at least 5 years of experience in business support in a professional services firm? This is a management role, supervising a small team in a top international law firm in Shanghai and Beijing. The work is varied covering budget preparation, HR management and IT supervision. Fluent English is essential; fluent Mandarin is also helpful. This position is open to experienced Chinese or non-Chinese nationals. Attractive compensation for the right candidate. Ref: 7928/CB
Hughes-Castell wishes you a joyful holiday season HONG KONG Tel: (852) 2520 1168 Fax: (852) 2865 0925 Email: hughes@hughes-castell.com.hk SINGAPORE Tel: (65) 6220 2722 Fax: (65) 6220 7112 Email: hughes@hughes-castell.com.sg
www.hughescastell.com
CHINA
ALB Fast 10 ■ Financial crisis ■ anti-monopoly
Issue 5.12