ISSUE 5.3
ALB China Law Awards 2008 Inside: All this year’s finalists announced ALB中国法律大奖 2008: 入围名单揭晓
Large-cap M&As Chinalco signals bright prospects for firms 大型并购: 中铝为律所带来利好消息
Antitrust More competition in lucrative area 反垄断: 市场竞争逐渐加温
International firms Scramble for top partners 国际律所: 高级合伙人变动频繁
CHINA
PRIVATE EQUITY Who is winning the big deals?
私募股权 谁在赢得大单？
DEALS ROUNDUP
LATERAL MOVES
IN-HOUSE VIEW
REGULATORY UPDATES
UK, US REPORTS
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asian legal business ISSUE 7.2
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ISSUE 5.3
CHINA
Growth spurs consumption
A The surging demand for legal services at all levels has continued to lure big international players to China
ccording to the latest China Consumer Survey by Credit Suisse, actual expenditure and budgeted spending among domestic consumers showed very sharp increases from the previous year. Strong income growth, supporting surging consumption, was also reported. The bank argued that we may have reached a watershed where economic growth will increasingly be driven by domestic private consumption rather than foreign investment. In the legal services market, although multi-national companies and foreign investors will remain powerful buyers, large domestic-based companies are rapidly rising to the top as major legal services consumers – consistent with the macro trends in the economy. Large companies have been delivering good financial results and expanding business on a global scale. Stellar earnings and international ambitions are pushing up their legal spending budgets each year. Chinalco is a perfect example. The world’s second-largest alumina producer reported a 24% raise in revenue for 2007. This growth was primarily achieved by expanding its business scope to include copper and acquiring large projects overseas. Chinalco’s US$14bn acquisition of shares in Rio Tinto, together with Alcoa (see page 6), is the largest overseas investment by a Chinese company so far. The surging demand for legal services at all levels has continued to lure big international players. The newest arrivals include US firms Reed Smith and Greenberg Traurig. Richard Rosenbaum, president of Greenberg Traurig, told ALB China that China is an increasingly important growth market and there is certainly a case for participating in this growth now. Meanwhile, Reed Smith’s resident senior US partner in Hong Kong, Thomas Todd, says he believes the Chinese economy is among the most important in the world, and he expects the China offices will become a critical part of the firm. With the number of players increasing rapidly, the industry has become a lot more competitive. Firms are being put under great pressure to recruit senior partners who can steer clear of obstacles and lead firms to success in China. As a result, a rare management reshuffle between a few international firms took place in the first quarter of this year (see page 18). As the market deepens and strengthens, this year’s ALB China Law Awards, to be held in Shanghai on 25 April, is an event not to be missed. In this issue we reveal the finalists (see page 40). We hope to see you on the night to celebrate the recent achievements of members within the profession.
IN THE FIRST PERSON “You’ll find more and more private equity firms have come around to the idea of having to make a direct investment into China, and basically localising their investments” Jeanette Chan, head of the China Practice Group at Paul Weiss, observes a trend of private equity investors returning to the old days of direct onshore investment (page 30)
“Many Chinese companies no longer rely on relationships and referrals; they understand the market and know who’ll be a good service provider in a particular jurisdiction” Rupert Li, Beijing partner with Clifford Chance, on PRC companies’ rapid emergence on the international scene (page 6)
“All international firms with offices overseas will look at China as a very important part of their international plan and want to take advantage of the growth that exists here” John Grobowski, Shanghai managing partner of Faegre & Benson, emphasises the importance of the market and the increased competition for senior partners (page 18)
“There’ll be growth. The question is how big the growth is going to be and how quickly it will come about” Thomas Ng, Linklaters’ partner in Beijing, expects to see extra work flow from the introduction of the Anti-Monopoly Law (page 16)
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ISSUE 5.3
inside 30
ALB CHINA ISSUE 5.3
REGULARS 6 • • • • • •
Deals Analysis: Chinalco and Alcoa to share stake in Rio Tinto China Railway Group listing Gemdale Corporation issues corporate bonds in the billion Yuan mark Weight Watchers and Groupe Danone join forces Joint venture for Air Liquide and Tianjin Soda Telefónica boosts stake in China Netcom
6 Cover story 30 Private equity Despite recent PRC regulatory measures, investors are still flocking to China, using direct onshore investment to get around the regulations
FEATURES 40 ALB China Law Awards 2008 Finalists announced for this year’s biggest legal event
16 News • Analysis: Anti-Monopoly Law will bring practice growth • Analysis: Management reshuffle indication of intent to grow • Skadden opens in Shanghai • Liuhe merger brings new zest • Taylor Wessing’s Beijing launch • WTO appoints Jun He senior counsel
UPDATES 20 Singapore LOO & PARTNERS 21 Shanghai LLINKS LAW OFFICE 22 IP Cracking down on supply chain disruptions ROUSE & CO 23 International tax UK on the verge of OECD signing AZURE TAX 24 China China lays down the law for New Enterprise Income Tax legislation PAUL WEISS 25 Arbitration SIAC
PROFILES
60 Sign off
13 14 31 33 36 37 55
封面故事
特刊
热点
30
40
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54 IPBA 2008 The annual Inter-Pacific Bar Association (IPBA) meets again – this time in LA
私募股权投资
2008年ALB中国法律大奖
一系列政策的变化限制了原有的两头在外的投资
最大规模法律行业盛会 – ALB中国
模式，直接投资因而被越来越多的国际投资者所
法律大奖公布本年度入围名单
采用
54
环太律协年会 第18届环太平洋律师协会年会 在美国洛杉矶成功召开
ALB 4
16
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Guantao Akin Gump Dacheng Chen & Co Dacheng Zhong Lun Lifang & Partners
交易
● 分析：中铝巧用法律顾问确保参股力拓成功 ● 中铁首开‘先A后H’上市先河 ● 金地发行12亿元公司债 ● Weight Watchers携手达能集团 ● 法液空与天津碱厂达成合作协议 ● 西班牙电信增持中国网通股权
16 新闻
● 分析：反垄断业务潜力巨大 ● 分析：管理合伙人变更暗示国际律所扩张需求 ● 美国世达落户上海 ● 浙江六和与亚细亚顺利联合 ● Taylor Wessing中国行首站抵京 ● 君合资深顾问成为国内首位WTO大法官
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DEALS >>
ISSUE 5.3
ANALYSIS
Impeccable legal representation for Chinalco’s masterstroke Finding the right legal advisors was an indispensable element for the success of Chinalco and Alcoa’s joint US$14bn dawn raid on Rio Tinto ► CHINALCO AND ALCOA ACQUISITION OF 12% STAKE IN RIO TINTO Value: US$14bn Date: February 2008 Firm: Haiwen & Partners Lead partners: Hua Lixia Client: Chinalco on PRC law Firm: Clifford Chance Lead partners: Kathy Honeywood, Rupert Li, Nigel Wellings Client: Chinalco and China Development Bank on UK law Firm: Simpson Thacher & Bartlett Lead partners: Douglas Markel, Casey Cogut, Alan Klein, Euan Gorrie, Stephen Short Client: Chinalco on US law Firm: Mallesons Lead partners: Peter Cook Client: Chinalco on Australian law Firm: Macfarlanes Lead partners: Graham Gibb and Julian Howard Client: Alcoa on UK law Firm: Cleary Gottlieb Steen & Hamilton Lead partners: Mark Leddy and David Gelfand Client: Alcoa on antitrust issues Firm: Watchell Lipton Rosen & Katz Lead partners: Adam Emmerich, Gregory Ostling and Eric Rosof Client: Alcoa on US law Firm: Linklaters Lead partners: James Inglis Client: Rio Tinto (on the failed BHP bid) Firm: Sullivan Cromwell Lead partners: Robert Osgood and Juan Rodriguez Client: Rio Tinto (on the failed BHP bid) Firm: Allens Arthur Robinson Lead partners: Ewen Crouch Client: Rio Tinto (on the failed BHP bid)
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he eyes of the world have been fixed on Rio Tinto since November, when BHP offered three of its shares for every one of Rio’s. However, on 1 February, the Aluminum Corporation of China (Chinalco) took the M&A world by surprise and stole most of the limelight when it joined forces with US aluminium producer Alcoa to buy a 12% stake in Rio. The acquisition, valued at US$14bn, is so far the largest foreign investment ever made by a Chinese company. Described by the target as an “unsolicited development”, the move has been seen as a hindrance to BHP Billiton’s takeover bid for Rio and is being referred to as a “masterstroke”. Just days after Chinalco’s lightening share raid on Rio, BHP Billiton made its second takeover attempt by offering
ABOUT CHINALCO • Chinalco is the largest alumina and primary aluminium producer in China. • Headquartered in Beijing, Chinalco has operations across 21 provinces in China and subsidiaries or offices in nine countries across five continents. • The company employs over 200,000 people and has expected revenues in 2007 of US$18.3bn.
ABOUT RIO TINTO • Rio Tinto is a leading international mining group headquartered in the UK, combining Rio Tinto plc, a London listed company, and Rio Tinto Limited, which is listed on the Australian Securities Exchange. • Rio Tinto’s business is finding, mining and processing mineral resources. Major products are aluminium, copper, diamonds, energy (coal and uranium), gold, industrial minerals (borax, titanium dioxide, salt, talc) and iron ore. • Activities span the world but are strongly represented in Australia and North America, with significant businesses in South America, Asia, Europe and southern Africa.
Xiao Yaqing, president of Chinalco, and Alain Belda, CEO of Alcoa
3.4 BHP shares for each Rio share. Rio rejected the proposal, which failed to better the benchmark price Chinalco has set – an equivalent to four BHP shares for each Rio share. There is speculation that the ‘dawn raid’ was backed by the government, but Chinalco president Xiao Yaqing and foreign minister Yang Jiechi both have claimed that the acquisition is part of Chinalco and Alcoa’s development strategy, which conforms to international practice and market rules. In terms of instructing external counsel, Chinalco has undoubtedly followed international practice and adopted topclass standards. The company’s legal representative squad on the deal consists of teams from boutique local firm Haiwen & Partners, Magic Circle firm Clifford Chance, Wall Street firm Simpson Thacher & Bartlett and Australian firm Mallesons Stephen Jaques.
Multiple firms and multiple jurisdictions Corporate partner Hua Lixia led the Haiwen team, which acted for regular client Chinalco on domestic issues. Less than a year ago, Hua Lixia and his team advised Chinalco on its A-share listing and acquisition of Lanzhou Aluminium and Shandong Aluminium. When selecting international counsel for its US$14bn deal, Chinalco did not turn to Baker & McKenzie, a long-term corporate advisor that has acted on its H-share listing and new share placement, but instead the company instructed CC to be its prime counsel. The deal reportedly came shortly after CC senior partner Stuart Popham was part of a delegation that travelled to China
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>> DEALS
with Prime Minister Gordon Brown in an attempt to improve trade links between the UK and China. Although the acquisition was carried out through Chinalco’s Singapore wholly owned subsidiary, Shining Prospect Pte Ltd, the main part of the transaction was implemented in the London market. Naturally, CC, which is headquartered in London and has a JV partner firm in Singapore, became the firm primarily responsible for executing the deal. Simpson Thacher & Bartlett, which opened its fi rst China office in Beijing just 10 months ago, should cheer for its wise China strategy which, more or less, helped the firm win the mandate to act on the deal. The firm was instructed by Chinalco to negotiate fi nancing for the deal and provide US regulatory and M&A advice. Douglas Markel, who left Freshfields’ Beijing office to be Simpson’s managing partner in Beijing, was among the lead partners on the deal. Given Rio’s ties to Australia, Mallesons was also involved in advising Chinalco on Australian regulatory issues in the deal. Sydney based partners Peter Cook and Greg Golding, together with Brisbane partner Robert Jackson, were the principals of the Mallesons team. For CC, taking a lead role in representing the largest-to-date overseas investment by a Chinese company has been a cordial experience, especially considering the firm was instructed by the client for the first time. CC’s Beijing partner Rupert Li, one of the lead partners on the deal, described his firm’s participation in the transaction as being “very privileged”. “It’s really the first time the client has instructed us; we’ve never acted for this company before,” Li said. “It speaks to the confidence of Chinese companies, because they no longer rely on relationships and referrals, and they understand the market and know who’ll be a good service provider in a particular jurisdiction.” Commenting on this high-profile acquisition, Li underlined two features that make the transaction stand out. “The deal, widely referred to as a dawn raid, was executed in a remarkably short period of time with the commitment of great resources of many professional institutions, including the financial advisor Lehman Brothers and all the law firms,” said Li. “What’s been more remarkable of the transaction is the fact that there was virtually no leakage. The parties have kept a very high level of confidentiality,” he continued. “There were market ru-
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DEALS >> mours about possible actions to be taken by various Chinese parties, but no one pinpointed our client until the deal was actually announced. “That was quite remarkable given the sensitivity of this transaction and the context in which the deal was done.” Work ing on outbound investments w ith such a n u nprecedented scale requires firms to not only have an extenRupert Li, sive global network Clifford Chance of resources, but also a reputation for being able to work with others as an integrated team. Li said that in cross-border transactions he expects to see clients increasingly deploying multiple firms in multiple jurisdictions. “Increasingly firms will have to work with each other, so it’s essential for a lawyer or a firm to have a reputation for being cooperative and easy to work with,” he said.
First-flight client to work for
“The deal was executed in a remarkably short period of time with the commitment of great resources of many institutions” RUPERT LI, CLIFFORD CHANCE All external counsel worked closely with a number of in-house legal counsel under Chinalco’s overseas investment department. The highly efficient and experienced in-house team of the client has ensured the best performance of all external counsel and the best possible outcome of the deal. “Chinalco’s in-house team is first-flight. It’s a very experienced, very polished and extremely hard-working team. It’s also very easy to service, because everyone is bilingual and sufficient,” said Li. The fact that Chalco, Chinalco’s subsidiary, is listed in Hong Kong, New York and Shanghai, certainly helped forge a mature and sophisticated in-house team that is experienced in working with international counsel.
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ISSUE 5.3
The listed company is driving Chinalco’s overseas expansion strategy, acting as an international arm. Prior to the Rio Tinto share acquisition, Chalco acquired Peru Copper, headquartered in Vancouver, Canada, for US$790m. The company has also invested in mining projects in countries such as Vietnam, Guinea and Australia. Last March, the company signed an agreement with the government of Queensland, Australia, to develop the Aurukun bauxite mining project. The US$2.58bn deal is by far the largest investment by a Chinese company in Australia.
Chinalco’s president Xiao has told the press that his company’s future goal was to evolve into an internationally competitive multi-metal mining company. “Our overseas business will grow at a faster pace than at home, and it’s going to contribute most of our revenue,” Xiao said in an interview with Caijing magazine in early March. Having had such a pleasant experience working with Chinalco on the deal, all the firms involved are hoping to be the beneficiaries of the first-rate company’s growing global ambition.
中铝并购妙举背后的法律顾问 去
年11月，当必和必拓对力拓提出以每3股必 和必拓股票换1股力拓股票的收购要约时， 全球业界的目光纷纷投向力拓。今年2月1日，中国 铝业（Chinalco）与美国铝业公司（Alcoa）联合收 购力拓 12％股份的消息一经宣布便引起并购界一 片哗然。本次交易总对价达到140亿美元，成为中 国企业历史上规模最大的一次海外投资，也使这家 中国最大的有色金属企业备受世界瞩目。 被力拓称为“事先未获告知的主动收购行动”，此 次并购成为必和必拓收购提案的主要阻碍，堪称 “ 妙举”。中铝对力拓的闪电式收购后仅数日，必和 必拓提出3.4股换1股的新报价，但再次遭到了力 拓的拒绝。 针对市场上存在中铝收购是政府行为的怀疑，中 国铝业总经理肖亚庆和国家外交部部长杨洁篪均表 示，收购是出于商业目的，顺应中铝和美铝的战略 发展需求，并符合国际惯例和市场规则。 虽然这是中铝第一次参与对世界顶级公司的并 购，但在聘用外部法律顾问方面，中铝毫无疑问地 遵守了国际惯例，秉承一流行业标准。在此次收 购项目中，为中铝提供法律顾问服务的律所包括 海问、英国高伟绅、美国盛信和澳大利亚万盛国际 律师事务所。
多国专家团队与和全球化交易 合伙人华李霞带领的海问团队代表中国铝业处理与 其交易相关的国内法律事宜。此前不久，华李霞及 其团队曾就A股上市和收购兰州铝业和山东铝业为 中国铝业提供法律服务。 在为价值约140亿美元的交易选择国际法律顾问 时，中铝并未选用贝克·麦坚时。该所曾代理中铝的 H股上市和新股发行事务，并且是中铝的长年国际法 律顾问之一。在经过一番深思熟虑之后，中铝最终 选择了高伟绅作为该项目的主要法律顾问。 尽管对力拓的收购通过中国铝业在新加坡的全 资子公司Shining Prospect Pte Ltd执行，交易的 主要部分仍在英国资本市场进行。总部设于伦敦， 并且在新加坡设有分支机构的高伟绅便自然而然的 成为中铝的首选。 此外，在获得中铝的专项委托前不久，高伟绅高 级合伙人Stuart Popham曾作为随行代表团成员，
陪同英国首相布朗访华，旨在加强中英之间的贸 易合作关系。 对于美国盛信而言，于十个月之前成立的北京 代表处以及前富而德资深合伙人马道龙的加盟，或 多或少对事务所受聘于中铝起到了积极促进作用。 在收购力拓项目中，中铝委托该所负责交易融资谈 判，并提供美国监管法规和并购方面的顾问服务。 马道龙是领导该所交易团队的合伙人之一。 鉴于力拓与澳大利亚的密切关联，万盛国际律 师事务所也参与了此次交易。该所主要就澳大利亚 相关法律和监管规定为中国铝业提供咨询。合伙人 Peter Cook，Greg Golding和Robert Jackson是万盛 团队的主要负责人。 能为中国企业历史上规模最大的一次海外投资项 目献计献策，足以令国内外律所兴奋不已。高伟绅 交易团队负责人之一的北京合伙人李孝如表示，事 务所之前从未受雇于中铝，因此对能够参与此次并 购交易 “倍感荣幸”。 Rupert Li 表示：“这是中铝与本所的首次合作。此 次合作经历非常完美，凸显中国企业迈出国门收购 运作上的日趋成熟。中国企业在雇请和管理外部法 律顾问方便的经验亦日渐丰富。他们不再依赖关系 和推荐，并且精通市场行情，知道哪家事务所能够 在哪个司法管辖范围内提供最好的服务。” 在谈及此次并购交易的独特之处时，李律师表 示：“该交易被称为突袭式收购，因此必须在极短 的时间内完成。诸多专业服务机构，包括金融顾问 雷曼兄弟和所有律师事务所，都投入了大量资源以 确保收购成功。” 李律师同时指出：“此项交易更为 显著的特点是整个过程中没有任何信息泄密。相关 各方对并购事宜均高度保密。” 市场上对中国各方就“两拓并购” 可能采取的行动 有不少传言，但直至交易宣布时，没有任何有关中 铝收购的消息。“鉴于该交易的敏感性和交易结构 的复杂程度，保密工作能达到如此高的程度，着实 是难得的成就，”李律师说。 能够帮助企业在境外进行如此大规模的投资，事 务所不仅需要具备广泛的全球资源网络，还应具备 突出的团队协作能力。 李律师预测客户将越来越 需要雇请多家不同国别的律师事务所来为其日趋全 球化的交易提供顾问服务。他说道：“多家事务所在
>> DEALS
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同一项目里协力配合，共同为客户提供服务的情况 将越来越普遍。在沟通应变和团队协作方面拥有良 好口碑，对律师或事务所来说将尤为重要。”
一流内部团队令法律工作事半功倍 参与中铝收购的所有外部律师都需要与该公司的海 外投资部门以及内部法律顾问团队密切合作。效率 极高且经验丰富的内部团队使所有外部顾问达到最 佳表现，从而确保交易取得最大成功。 李律师表示：“中国铝业的内部团队拥有一流的 素质能力。该团队经验丰富、业务娴熟且极为勤 奋。所有人员都具备良好的双语能力，与他们的合 作交流十分默契。” 中国铝业的子公司Chalco已在香港、纽约和上海 上市，有助于培养成熟且完善的内部团队。他们在 与跨国律师事务所合作方面经验丰富。 上市公司作为中国铝业的国际分支机构，是集 团海外扩张战略的主要执行者。在收购力拓股权之 前，Chalco曾斥资7.9亿美元，收购总部位于加拿大 温哥华的秘鲁铜业公司。Chalco亦在越南、几内亚 和澳大利亚等国投资于矿产项目。去年三月，该公 司与澳大利亚昆士兰州政府签订协议，开发Aurukun 矾土矿项目。该交易价值25.8亿美元，是目前中国 公司在澳大利亚的最大规模投资。 中国铝业总经理肖亚庆在收购完成后曾对媒体 表示，具有国际竞争力的多金属公司是中铝发展 的长期目标。在实施“走出去”过程中，中铝会加大 力度。“我们今后海外业务的增长速度，会比国内 要快，海外经济效益贡献的权重，也会比国内要 大，”肖亚庆说道。所有参与了此次中铝并购案的 律师事务所都希望能够继续成为这家一流企业全球 业务增长的受益者。
► CORRECTION 更正启示 The section entitled ‘Deals analysis’ in ALB Issue 5.1 contained the following errors: Golden State Water Group (GSWG) was noted as being “voted one of top 10 most influential Chinese water companies of 2006 by Hong Kong-based China Water Company (CWC)”. That should read: “GSEGC, the parent company of GSWG, was voted one of top 10 most influential China water companies of 2006 by China Water net.” GSWG was also noted as being “Beijing-based”; that should read: “GSWG is incorporated in the Cayman Islands and carries on business of water and waste water as the part of GSEGC group throughout China.” ALB regrets these errors. 本刊5.1期第6-7页刊登的《君合为金州跨国 合资出谋献策》一文中的表述存在不准确之 处。2006年，金州环境集团，金州水务的母公 司，被中国水网评选为中国水业十大影响力企业 之一，而并非“由香港汇律中国有限公司评选出”， 且金州与汇律之间并不存在合作关系。此外，金 州水务在该文中被错误地引述为“北京金州水务”， 实际上，金州水务作为金州环境集团在开曼群岛 注册的下属公司，在全国范围内负责供水、污水 处理项目的投资及资产管理。《亚洲法律杂志－ 中国版》编辑部特此更正说明，并向读者致歉。
YOUR MONTH AT A GLANCE Firm
Jurisdiction
Deal name
Allen & Overy LLP
Hong Kong
Gemdale Corporation & UBS AG JV
Baker & McKenzie
China
Clifford Chance
Commerce & Finance
US$m
Practice
Est. 300
M&A
Bain Capital Partners LLC Acquisition & of Bath & Kitchen business of AS Inc.
1,745
M&A
China
Medtronic Investment in and JV with Shandong Weigao Group Medical Polymer Co. Limited
221
M&A
China
Weight Watchers International Inc. & Groupe DANONE JV
n/a
M&A
China
Chinalco & Alcoa Share Acquisition in Rio Tinto
14,000
M&A
China
Telefonica Internacional purchase of stake in China Netcom
454
M&A
China
Giant IPO
1,020
Equity
Hong Kong
Agria Corporation IPO
283
Equity
Deacons
Hong Kong
Beijing Enterprise Holdings Limited Share Placement
475
Finance
DLA Piper
China
China Railway Group IPO
Drew & Napier LLC
Hong Kong
CIT Financing package
Hong Kong
CIT acquisition and leaseback of 21B Senoko Loop Singapore 758171
Hong Kong
Criteria Caixa Corp Acquisition of stake in Bank of East Asia
China
Increase Air China stake in Air China cargo
Hong Kong
Playmates Toys Limited listing
China
Air Liquide JV with Tianjin Soda Plant
Freshfields
Gide Loyrette Nouel
5,500
Equity
570
Debt market
15
M&A/ Equity
508
M&A
118
M&A
Undisc. 118
Equity M&A
Grandall Legal Group
China
Giant IPO
1,020
Equity
Haiwen & Partners
China
Chinalco & Alcoa Share Acquisition in Rio Tinto
1,400
M&A
Harry Elias Partnership
China
ST Aerospace & Xiamen Aviation Industry Company Ltd JV
78
M&A
Heller Ehrman
Pan-Asia
Bezurk.com Series A financing
Hogan & Hartson
China
ChinaEdu Corporation IPO
68
China
Tian Rui Hotel Corporation Investment
50
Equity
Huen Wong & Co / Fried Frank
Hong Kong
Xinjiang Xinxin Mining IPO
503
Equity
Jia Yuan
China
China Railway Group IPO
5,500
Equity
King & Wood
China
Gemdale corporate debt issuance
Linklaters
China
China Railway Group IPO
Mallesons
China
Chinalco & Alcoa Share Acquisition in Rio Tinto
O’Melveny & Myers
China
Giant IPO
China
ATA Inc. IPO
Paul Weiss Rifkind Wharton & Garrison
China
Rajah & Tann
Undisc.
169
Debt market Equity
Debt
5,500
Equity
14,000
M&A
1,020
Equity
46.3
Equity
Weight Watchers International Inc. & Groupe DANONE JV
n/a
M&A
Hong Kong
Somerset Capital Pte Ltd Acquisition of Ascott Group Shares
678
M&A
Simpson Thacher
China
Chinalco & Alcoa Share Acquisition in Rio Tinto
14,000
M&A
WongPartnership
China
Bain Capital Partners LLC Acquisition & of Bath & Kitchen business of AS Inc.
1,745
M&A
Indonesia
Enercoal-Bumi CB issue
Singapore
REST OF ASIA Ali Budiardjo Nugroho Reksodiputro
Allen & Gledhill
Amarchand Mangaldas
150
Debt market
Government of the Republic of Indonesia Bond issue
2,000
Debt market
Singapore
The Cairns Pte Ltd Voluntary Conditional Share Sell-Off
1,300
Debt market
Singapore
BTHL MTN establishment
247
Debt market
India
ICICI Bank bond offering
2,000
Debt
India
Reliance Power IPO
3,000
Equity
9
DEALS >>
ISSUE 5.3
| CHINA/HONG KONG | ► CHINA RAILWAY GROUP LISTING US$5.5bn The largest A+H listing in 2007
Firm: Sullivan Cromwell Lead lawyers: Robert Osgood and Juan Rodriguez Client: Rio Tinto (on failed bid by BHP Billiton) on US law
Firm: Jia Yuan Lead lawyers: Yan Yu and Zhen Jianshi Clients: Issuer on Chinese law Firm: Linklaters Lead lawyers: Celia Lam Clients: Issuer on International law
Firm: Simpson Thacher Lead lawyers: Douglas Markel, Shaolin Luo, Liang Wang, Casey Cogut, Alan Klein, Sebastian Tiller, Yueting Liang, Euan Gorrie, Stephen Short, Antti Personen, Aurelian Jolly, Peter Thomas, Brijesh Dave Client: Parent Company on Chinese and English law
Yan Yu, Jia Yuan
Firm: DLA Piper Lead lawyers: Liu Wei, Esther Leung and Jeffrey Mak Clients: Joint Sponsors and underwriters on Chinese & Hong Kong law • China Railway Group is the largest construction company in Asia and the third largest construction contractor in the world • It was the largest A+H listing (dual listing in Shanghai and Hong Kong) in 2007 and pioneered the ‘first A then H’ listing model in the history of the Hong Kong Stock Exchange
• Chinalco, together with Alcoa Inc, purchased approximately 12% of the outstanding ordinary shares (including American Depositary Shares) of Rio Tinto plc, the UK entity, in the open market for over $14bn • This is the largest foreign investment ever by a Chinese entity • Chinalco is the largest alumina and primary aluminium producer in China and has operations across 21 provinces in China and subsidiaries or offices in nine countries across five continents • Shares were purchased from a number of large investors in Rio Tinto at £60 ($118) per share, around a 20% premium to Rio Tinto’s closing price on Thursday, 31 January
| CHINA |
► SEB TOB FOR SUPOR US$485m The first direct acquisition by a foreign company of a majority stake in the capital of a Chinese A-share listed company Firm: Gide Loyrette Nouel Lead lawyer: Hubert Bazin Client: Acquirer on Chinese law • US$485m takeover • SEB International is the world’s leading culinary goods and small household electrical appliances manufacturer
Hubert Bazin, GLN
Est. US$122m Firm: Gide Loyrette Nouel Lead lawyers: David Boitout Client: JV Partner (Air Liquide) on Chinese law • Joint venture with Tianjin Soda Plant, a subsidiary of the Tianjin Bohai Chemical Industry group
David Boitout, GLN
• This deal represents several significant firsts for M&As in China such as the first partial tender offer on a Chinese Stock Exchange
• Air Liquide and Tianjin Soda have set up a JV in Tianjin, the capital of which is divided between Air Liquide (majority) and Tianjin Soda (minority)
• The first anti-monopoly investigation conducted by the Ministry of Commerce of the PRC (MOFCOM)
• This entity is building two air separation units (ASU), which will each have a production capacity of 2,000 tonnes per day, in order to supply Tianjin Soda, as well as other clients located in the Lingang industrial park before the end of 2008 • Air Liquide will commercialise the oxygen, nitrogen and argon supplied by the new ASU. The initial investment of the joint venture will amount to approximately 80m euros
► CHINALCO & ALCOA SHARE ACQUISITION IN RIO TINTO US$14bn Chinalco and Alcoa snare 14% stake in mining giant Rio Tinto Firm: Clifford Chance Lead lawyers: Kathy Honeywood, Rupert Li, Nigel Wellings, Douglas French, Andrew Woolmer, Greg Olsen, Simon Baxter, Tim Wang Clients: Acquirers Subsidiary on Chinese, Hong Kong and British law
10
► AIR LIQUIDE (CHINA) & TIANJIN SODA PLANT JV
► TELEFÓNICA INCREASES STAKE IN CHINA NETCOM US$454m Casey Cogut, Simpson Thacher
Involves share purchase from four separate China state-owned enterprises
Gemdale Plaza
Firm: Clifford Chance Lead lawyers: Cherry Chan, Allison Lindsay and Rupert Li Clients: Acquirer on Chinese law • Deal will involve Telefónica Internacional S.A.U., a wholly owned subsidiary of Telefónica S.A. acquiring an additional 2.22% stake in China Netcom
Allison Lindsay, Clifford Chance
• The deal is believed to be worth US$454m in total and, when regulatory approvals are complete, will increase Telefónica’s stake in China Netcom to approximately 7.22%
► WEIGHT WATCHERS INTERNATIONAL INC. & GROUPE DANONE S.A. JV The first weight management business in China
>> DEALS
www.asianlegalonline.com
Firm: Baker & McKenzie Lead lawyers: Howard Wu Client: Groupe Danone SA Firm: Paul, Weiss, Weiss, Rifkind, Wharton & Garrison LLP Lead lawyers: Jeanette K. Chan, Charles H. Googe Jr., Jeffrey B. Samuels Client: Weight Watchers International • The joint venture will facilitate the establishment of a weight management business in China • The joint venture will be 51% owned by Weight Watchers and 49% owned by Groupe DANONE, and is expected to commence retail operations in China within the next year
YOUR MONTH AT A GLANCE (CONT) Jurisdiction
Deal name
Anderson Mori & Tomotsune
Japan
JBIC Telemar loan facility
360
Banking
Baker & McKenzie
Thailand
Mermaid Maritime Public Company Limited IPO
170
Equity
Baker & McKenzie. Wong & Leow
Indonesia
BNI equity offering
880
Equity
Caguioa & Gatmaytan Law Firm
Philippines
PNOC-EDC stake acquisition
Chang See Hiang & Partners
Singapore
Wilmar International Limited Bond Offering
600
Equity
Cleary Gottlieb
Philippines
The Government of the Philippines Bond Offering
500
Debt market
• The partnership combines Weight Watchers International’s unrivalled expertise, experience and know-how as the world’s leading provider of weight management services with Groupe DANONE’s world-class expertise in healthy consumer products and extensive knowledge of the China marketplace and the Chinese consumer
India
Reliance Power IPO
Thailand
TMB Bank ING stake sale
674
Singapore
Wilmar International Limited Bond Offering
600
Equity
Japan
JBIC Telemar loan facility
360
Banking
Indonesia
Export-Import Bank of China Financing for PT Perusahaan Listrik Negara
615
Project finance
India
Geodesic Information Systems Bond Issue
125
Debt market
55
Equity M&A
Loan to BRAC Mobile Telecommunications Company of Saudi Arabia (Zain) IPO
Indonesia
PT Jasa Marga (persero) Tbk IPO
India
GMR Infrastructure follow-on offering
1,000
Equity
Davis Polk & Wardwell
India
ICICI Bank bond offering
2,000
Debt market
Fox Mandal Little
India
Teesta Urja Power project financing
1,150
Project finance
Japan
Baring Private Equity Asia Holdings K.K. acquisition of LADVIK from Kuramoto
Undisc.
M&A
Japan
Baring Private Equity Asia Holdings K.K. acquisition of ADP Pasona Payroll Inc.
25
M&A
Japan
Marubeni Acquisition of stake in Shanghao Christine Group
Undisc.
M&A
Undisc.
Firm: King & Wood Lead lawyers: Jin Qingjun and Pan Yujia Clients: Issuer • Property developer Gemdale Corporation has issued RMB1.2bn (US$169m) worth of eight-year fixed-rate corporate bonds. It was the first listed company in China to issue corporate bonds
2,930
M&A
Saudi Arabia
► GEMDALE CORPORATE BOND ISSUANCE The first corporate bond issuance by a listed company
1,360
Bangladesh
Commerce & Finance
US$169m
US$m
Practice
Firm
Banking
1,900
Equity
371
Equity
Vietnam
Morgan Stanley & Gateway Securities JV
Hadiputranto Hadinoto & Partners
Indonesia
BNI equity offering
• The plan of the debt issuance was announced shortly after China Securities Regulatory Commission (CSRC) issued new rules to allow listed companies to issue corporate bonds on a trial basis in August 2007
Hwang Mok Park P.C.
Korea
Shinhan Capital Co. term loan facility
Latham & Watkins
India
ICICI Bank bond offering
2,000
Debt market
1,360
M&A
• Gemdale, based in Shenzhen, develops residential, commercial and industrial properties
| HONG KONG | ► CRITERIA CAIXA CORPORATION ACQUISITION
Firm: Freshfields Lead lawyers: Robert Ashworth Client: Criteria Caixa Corporation on Hong Kong law Firm: Clifford Chance Lead lawyers: Amy Lo Client: Bank of East Asia on Hong Kong, Chinese Law • Criteria Caixa Corporation has increased its stake in the Bank of East Asia from 4.55% to 8.89%
100
M&A Equity Equity
Philippines
PNOC-EDC stake acquisition
Asia
GigaMedia License agreement
Makes & Partners
Indonesia
BNI equity offering
Millbank, Tweed, Hadley & McCloy LLP
India
Tata Steel Limited rights offering and share issuance
Mori Hamada & Matsumoto
Japan
Tokyo Star Bank Takeover proposal
2,400
M&A
Nagashima Ohno & Tsunematsu
Japan
JBIC Telemar loan facility
Singapore
Proposed Knowledge Two Investment Pte. Ltd. share purchase in The Straits Trading Company
Singapore
Yongmao Holdings limited listing and IPO
Malaysia
Primus Pacific Partners 1 L.P share acquisition in EON Capital Bhd
Indonesia
BNI equity offering
880
Equity
Singapore
Somerset Capital Pte Ltd Acquisition of Ascott Group Shares
687
M&A
US$508m Criteria Caixa Corp increases stake in Bank of East Asia
880
Raslan Loong
Singapore
Wilmar International Limited Bond Offering
Pan-Asia
Asia Real estate prime development fund
n/a
Licence agreement
880
Equity
2,300
Equity
360 1,310
Banking M&A
27
Equity
435
Equity
600 Est.600
Equity Banking & finance
Does your firm’s deal information appear in this table? Please contact Joshua Scott
joshua.scott@keymedia.com.au,
61 2 8437 4738
11
DEALS >>
ISSUE 5.3
► GEMDALE CORPORATION & UBS AG JV US$300m JV will facilitate major residential developments in Mainland China Firm: Allen & Overy LLP Lead lawyers: Simon Berry Client: JV Partner (Gemdale) on Hong Kong Law Firm: UBS AG (Hong Kong) Legal Team Client: UBS AG on Chinese law • Shenzhen-based Gemdale Corporation, a property developer listed on the Shanghai Stock Exchange entered into a joint venture with UBS AG- Hong Kong Branch • The major aim of the JV is to establish an offshore investment platform that will focus on residential developments in major and second-tier cities in the PRC, with expected total capital commitments to be up to US$300m
“This transaction represents a significant cooperation between an established PRC property developer and a major international investment institution. The project involves an innovative investment structure that suitably accommodates the legal, regulatory, taxation and commercial objectives of both parties” SIMON BERRY, ALLEN & OVERY
| TAIWAN/HONG KONG/MACAU | ► GIGAMEDIA LICENCE AGREEMENT GigaMedia secures an exclusive licence from Electronic Arts to offer and operate the game Warhammer® Online: Age of Reckoning™ in Taiwan, Hong Kong and Macau Firm: Latham & Watkins Lead Lawyers: Roxanne Christ Clients: Licensee on Asian law • Warhammer® Online: Age of Reckoning™ is one of the most highly anticipated games of 2008 according to numerous industry publications and has a wide market in Asia • The deal, which could reap GigaMedia hundreds of millions of dollars in revenue, demonstrates the global reach and popularity of online roleplaying games
in productive activities and small businesses • This is the second BRAC financing deal on which Clifford Chance has advised. In September 2006, the firm advised Citigroup, FMO and KfW on the world’s first Triple A-rated local currency securitisation of micro credit receivables for BRAC
“It’s very rare to find loans of this structure – an unsecured loan over seven years in Bangladesh. However, it exemplifies the increasing interest of commercial banks in financing the work of the microfinance sector” TING TING TAN, CLIFFORD CHANCE
| INDIA | | BANGLADESH |
► TATA STEEL LIMITED RIGHTS OFFERING US$2.3bn
► MICRO-FINANCE LOANS IN BANGLADESH US$55m Consortium loan of US$55m to BRAC, Bangladesh’s largest microfinance institution Firm: Clifford Chance Lead lawyer: Ting Ting Tan Client: Consortia Financiers on Bangladeshi law • Consortia Financiers formed by FMO, Norfund and Standard Chartered Bangladesh
Firm: Milbank, Tweed, Hadley & McCloy LLP Lead lawyers: Not supplied Client: International counsel for lead managers • US$2.3bn rights offering and cumulative compulsory convertible preference share issuance • Lead managers in the offering were JM Financial, DSP Merrill Lynch and Citigroup
Ting Ting Tan, Clifford Chance
• BRAC is one of the largest South Asian development organisations. Founded in 1972, its microfinance projects allow the poor to borrow, save and invest
12
The transaction was one of the largest Indian rights offerings to date
• The transaction needed to be carefully structured due to overlapping Indian and US securities regulations
► RELIANCE POWER LIMITED IPO US$3bn
>> DEALS
www.asianlegalonline.com
The largest ever Indian public offering Firm: Amarchand Mangaldas Advocates and Solicitors Lead lawyers: Not supplied Client: Issuer on Indian law • IPO valued at Rs.115,632m, approximately US$3bn • Reliance Power was a dormant company and had no business until very recently, prior to the IPO • Preparing the company for the IPO, structuring the deal, disclosures about the same, and ensuring compliance with regulatory requirements was a challenge • Further, an unusually large syndicate (10 lead managers) presented its own set of complexities
company, will build two new power plants in Java that will greatly increase PLN’s power generation capacity • The Indonesian government guaranteed the 15-year loans • These are the first Indonesian governmentguaranteed loans to be signed in the country • The government had previously issued support letters for PLN’s purchase obligations under its power purchase agreement
| JAPAN | ► PROPOSED TOKYO STAR BANK TOB US$2.4bn
| INDONESIA | ► EXPORT IMPORT BANK OF CHINA FINANCING US$615m
Proposed TOB for one of Japan’s largest banks Firm: Mori Hamada & Matsumoto Lead lawyer: Toru Ishiguro Client: Target on Japanese law
The Export Import Bank of China will provide project financing to PT Perusahaan Listrik Negara (PLN)
• Total bid price of US$2.4bn if 100% shares (including potential shares) are successfully tendered in the TOB
Firm: Clifford Chance Lead lawyer: Ting Ting Tan Client: Financier on Indonesian law
• Consortia of bidders include Japan Blue Sky Capital Partners, LP, Japan Banking Investment Partners, LP, Tokyo Capital Management Partners, LP and Cayman Strategic Partners, LP
• The loan to PLN, Indonesia’s state electricity
外资进入中国矿产资源领域的 相关法律程序
萧红明 体系，同时也有部分中国律师专注于提供矿产资源领域的法律服务，这有助于 外资有序进入中国市场，在符合相关投资政策要求、完成了法定投资程序后， 国际矿业资本将有更多的机会参与中国矿业开发、分享收益。
FIRM PROFILE
伴
随着以中国为代表的几大新兴发展中国家的崛起，以及其对资 源需求的不断扩大，近年来国际矿产品价格一路走高，这也促 成国际矿业资本市场的蓬勃发展。 中国是矿业大国，其探明矿产资源总量和20多种矿产的探明 储量居世界前列，矿业开发总规模目前居世界第三。由此，中国成为国际矿业 资本争相选择的投资对象国。针对大量涌入的境外矿业投资资本，中国政府主 要通过相关投资政策及法律、法规进行管制和引导。 2007年，国家发展和改革委员会、商务部联合发布《外商投资产业指导目 录》（2007年版）对2004年版做出了修订。一些中国稀缺的、不可再生的重 要矿产资源不再鼓励外商投资或不再允许外资勘查开采，铜、铅、锌、铝矿等 也不再列入鼓励类目录中。这一政策变化表明中国政府正在逐步改变原有对外 资进入矿业开发领域的鼓励态度。 当前，境外矿业资本主要通过跨国并购的方式，进入中国矿业开发领域。在 这一过程中，境外资本并购境内矿业企业应按照《关于外国投资者并购境内企 业的规定》的要求，在商务主管部门进行审批，取得相关批准后再至工商行政 管理部门办理变更设立为中外合资企业或外商独资企业的登记。商务主管部门 在对并购进行审核时将充分考虑项目的可行性、合法性，并就其是否符合有关 矿业政策及原矿权权属是否存在争议等问题征询国土资源管理部门的意见，国 土资源管理部门的答复将成为商务主管部门做出审批决定的重要依据。同时， 根据《外商投资项目核准暂行管理办法》的相关规定，境外资本并购境内矿业 企业，需要至发展改革部门进行外商投资项目核准。另外，境外投资者应在支 付股权对价后办理转股收汇外资外汇登记证明。 目前，中国已经建立了一套较为完整的外资并购境内矿业企业的法律、法规
萧红明 合伙人、律师 观韬律师事务所 地 址: 中国, 北京, 西城区金融大街28号盈泰中心2号楼17层 邮 编: 100032 电 话: (86-10) 6657 8066 传 真: (86-10) 6657 8016 E-mail: xhm@guantao.com
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PROFILE
ISSUE 5.3
Bridging the East and
A
kin Gump Strauss Hauer & Feld (Akin Gump) is proud of the diverse backgrounds of its attorneys and what it calls an unyielding commitment to excellence. The global firm has recently celebrated the opening of its new office in Beijing. The latest addition to Akin Gump opened its doors in January 2007, and is one of the firm’s 15 global offices, handling both in-bound and out-bound investment. This comes as a response to further Chinese economic liberalisation and significant foreign investment coming into the country. Over the past decades, there has been dramatic change in Mainland China’s economy. In 2006, foreign investment in the country totalled $69.5bn, of which the US was the fifth largest source. Behind the scenes, however, there are reports that foreign investment is sometimes subjected to strict regulation by the ruling Communist Party. Therefore, navigating through the intricacies of Chinese law and doing outbound foreign transactions or investment can be quite daunting. Akin Gump is able to help remove the confusion, with its senior advisors and bilingual lawyers, who have extensive experience in counselling on corporate, cross-border MA, transaction and government matters. Some of these experts have previously helped draft new Chinese laws and regulations, including the recent Employment Contract Law and Franchising Regulations, placing them in a good position to liaise with Chinese partners and obtain approval from authorities. Akin Gump values diversity and will
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help ensure that a client does not feel alienated. In 2005, its global team of 900 lawyers was acclaimed in the Minority Law Journal as having one of the highest percentages of ethnic minority partners. They are admitted to practice in a range of areas, including acquisitions, private equity, intellectual property (IP), customs, employment law, international trade and public law.
Understanding China As many business people have discovered, the Chinese legal system differs greatly from that in the West. Many of Akin Gump’s lawyers have graduated from law schools in the US or China, and practised law in the two countries, enabling them to help both foreign and Chinese clients. Advising on merger and acquisition deal structuring, craft and managing due diligence investigation is all in a day’s work for Akin Gump. Its legal staff can also help draft acquisition documents, conduct pre-closing due diligence
investigation and advise on postacquisition issues.
IP protection and royalties In the past, foreign investment, and mergers and acquisitions have often brought the assessment and disposal of IP rights. However, since China became a signatory of the WIPO Copyright Treaty in June 2007, greater power has been given to law firms to stop IP theft. Akin Gump can also advise on the ‘dos’ and ‘don’ts’ of making IP royalty payments outside of China, importing and exporting technology, and encrypting technology application in software and database products. “We advise clients to properly structure and document the relevant business related to royalty payment. We help ensure that the underlying contracts of royalty payments are approved by the Chinese Ministry of Commerce before the contract becomes effective, or register the contract after it becomes effective,” said Janet Tang, a partner at Akin Gump.
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West Identifying legislative and regulatory issues can be critical for the success of a transaction. Akin Gump’s Beijing presence, together with its antitrust and regulated industries practices, helps prepare foreign companies for the filing and prosecution of regulatory approvals.
Customs law Whether a client just wants to comply with Chinese Customs regulations, handle a smuggling case investigation or challenge a decision made by the authorities, Akin Gump can offer a simple explanation. This includes customs classifications for import and export goods, evaluation of dutiable goods and locating the origin of goods.
Antitrust law Even though antitrust law is quite new to China, the legal team at Akin Gump is able to advise foreign clients on issues that date back several years. This includes preparation of a pre-merger antitrust filing or any potential issues that could be caused by a cross-border merger or acquisition.
Public policy It has become increasingly important for national and multinational businesses to be informed about new laws and regulations in advance. Akin Gump
recognises this and goes one step further to let clients know the significance of any changes and how to adapt. “Clients are learning that they need to consider policy and political issues along with financial and legal issues when they are first contemplating major transactions. That is why Akin Gump is increasingly at the table,” said partner in charge Eliot Cutler. Unlike other in law firms, comprehensive business strategies are not necessary at Akin Gump, for clients wanting to resolve disputes, explore new opportunities or manage corporate communication. Akin Gump has an alliance with Publicis Communications, a world leader in crisis communication, which offers global experience in communication, law and public policy. Akin Gump has been named as one of the largest and most diverse public law and policy practices in the world. American Lawyer ranked Akin Gump’s litigation group as one of the top Public Policy firms that consider legal structure is equally as important as political structure. “Akin Gump perennially is regarded by most observers as both one of the top public policy firms and one of the top international law firms. Yet, among the two or three leading lobbying firms in Washington, we are the only one that is a leading international law firm,” said Cutler.
Eliot R Cutler is the partner in charge of the Beijing office and has over 35 years’ experience as a lawyer, government official and political advisor in the US. He was a founding partner of Cutler & Stanfield LLP, which merged with Akin Gump in November 2000. Through his leadership, he has represented clients in airport, highway and other major project matters.
Janet Jie Tang is a partner at Akin Gump, with 14 years’ experience in advising US and European clients on business transactions in China. Her main areas of practice are corporate, mergers, acquisitions, foreign direct investment and commercial law. Prior to joining, she was a partner at both DLA Piper and Coudert Brothers LLP. She was also the assistant to the secretary-general of the Chinese Society of International Law and an assistant lecturer in public international law at the Foreign Affairs College in Beijing.
Q. What attracted you to work for Akin Gump? A. Janet: From the inbound investment perspective, Akin Gump is brand new to China and needs the experience that my team and I have to counsel US clients on doing business in China. It is also brand new to Asia, so it will take time for this market to become familiar with Akin Gump in terms of its strength, namely its public policy practice. Q. Not many foreign law firms in China provide a public policy service. Why do you have it? A. Eliot: Cross border investment – whether it is from PE firms, sovereign wealth funds or corporations with M&A plans – will become increasingly challenged by rules and regulations that have political and public policy roots. Clients engaged in those transactions need integrated legal and policy advice, so we provide it. Q. China is expected to do large-scale outbound investment in the next decade. How will this affect foreign business? A. Eliot: The process has started and will continue to grow – it has to. Our studies suggest that Chinese companies with lots of cash and steady cash flows will be among the earliest active outbound investors: banks, insurance companies and telecoms are examples of this. Makers of consumer goods like clothing and accessories accessing capital will consolidate, eliminating weaker players and then turn to the West to buy brand names that used to be their clients.
FIRM PROFILE
Regulatory issues
Q&A WITH JANET TANG AND ELIOT CUTLER
Q. How will this change the relationship between foreign and Chinese companies? A. Eliot: The difference now is that the Chinese economy will be much more integrated with the rest of the world. That will require some accommodation on the part of both China and the rest of the world.
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NEWS >>
ISSUE 5.3
ANALYSIS
Firms put trust in competition practices
After more than a decade of debate and consultation, China’s Anti-Monopoly Law (AML) will come into force on 1 August 2008. The new era of unified antitrust and competition policy in the PRC sees law firms gearing up for growth in this practice area as clients attempt to navigate the changes. Jonathan Gadir reports
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awyers giving antitrust and competition advice in China are facing a period of uncertainty as they wait for regulations that will flesh out the upcoming AML and the establishment of the agencies that will enforce it. “What we’re lacking is the detail in the implementing of rules. That’s the biggest difficulty that we have at the moment in terms of being able to give detailed answers,” said Andrew McGinty, partner at Lovells in Shanghai, who has handled most AML preparation for that firm. Although the legislation is broadly in line with the EU competition regime, the front page of Lovells’ recent AML corporate bulletin reveals some of the worries about the new law. It displays a cartoon of a Monopoly board where stateowned enterprises (SOEs) are cheering, while another square on the board reads: “Report competitor – advance to free parking.”
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The cartoon is referring to the law’s various exemptions for SOEs, and the requirement that an investigation must be made into any written complaint, without there being penalties for those who make a false report. The sensitivity of antitrust issues means lawyers are generally reticent to talk specifics about current or recent work. But initial uncertainty has not held back some firms from moving assertively to meet the growth in demand. Alex Potter, antitrust practice partner with Freshfields Bruckhaus Deringer, is a new arrival in Beijing. His secondment from London is the latest step by the firm to increase its focus on antitrust in China. “We had a team here which started working on the merger control provisions which came into force a few years ago, and they’ve been very busy,” said Potter. “So we thought now was the right time to send a practitioner from a jurisdiction
where antitrust enforcement is a highly developed area, to be here for a transitional period. Clients are looking at August and thinking: ‘Up to now we haven’t had to comply with similar rules as exist in other parts of the world.’ So there’s a surge of interest in training for legal staff and business staff.” For Lovells, the AML has transformed what was an ancillary activity for the firm into a distinct practice area. The firm already has a specialist associate in China and is seconding senior competition lawyer Kirstie Nicholson from the Brussels office. “It’s a serious ramp-up because we’re seeing a huge increase in demand for this kind of advice,” said McGinty. “We see the period prior to the AML coming into force as a window of opportunity where companies can come to us and we can retool their businesses.” When it comes to local firms, PRC legal powerhouse King & Wood now has five practitioners in the area and is planning to add to that number, according to Susan Ning, partner with the firm in Beijing. Ning said established business practices may become illegal after August and clients are asking for compliance reviews. “Our existing clients are coming to us and we’re also targeting [other] companies.” More cautious approaches are also to be found, especially from larger firms which are already well covered and active in the M&A field in China. Clifford Chance added a dedicated antitrust lawyer to its Beijing office in 2007 and says it may consider hiring a permanent senior associate or partner, depending on the release of the AML’s implementing rules and how business develops over the next six months. Similarly, Linklaters’ partner in Beijing, Thomas Ng, says his firm is watching to see how much extra work will flow from the introduction of the AML. “There will be growth. The question is how big the growth is going to be and how quickly it will come about,” said Ng. “We’re considering all possibilities, including two-way secondments [Brussels to China and vice-versa]. There will be a role for foreign law firms, but exactly how big that role is remains to be seen.” Campbell Davidson, partner with Allens Arthur Robinson in Shanghai – who wrote the firm’s summary note on
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the AML – also agrees work will grow, but says he does not believe antitrust will be a standalone practice area in most firms for at least a couple of years.
Changing the work balance The consensus is that the AML is expected to change the nature of the legal workload. Until now, work in the area has been largely in the context of M&A transactions.
Andrew McGinty, Lovells
However, under the new law, price fixing and issues surrounding abuse of dominant market position are likely to emerge as key concerns requiring free standing compliance advice. The AML comes at a time when the PRC government is increasingly worried about inflation and the potential for social unrest it entails. Pricing could therefore be an area of focus for the regulators, according to Lui
Lui Chun Fai, Baker & McKenzie
Thomas Ng, Linklaters
Chun Fai, Shanghai-based associate with Baker & McKenzie’s global competition practice. Lui therefore expects that initially much work will involve carrying out compliance audits. As for what will happen after the dust has settled from the initial flurry of compliance reviews, many in the field believe it may take some time for antitrust work in China to become comparable to other major legal markets. “I suspect it’s not really the Chinese way to go straight for litigation in the same way that perhaps some other competition regulators in western jurisdictions might be inclined to,” said Allens’ Davidson. “Pressure will be brought to bear, but it may not necessarily be litigation – certainly not in the first instance.” Nonetheless, the AML will deliver new agencies with new powers and will have a significant impact on all aspects of doing business. Companies will need to start applying the same disciplines they do in western markets to China. ALB
竞争法业务领域硝烟渐起 在
国内提供反垄断和反不正当竞争法律顾问服 务的律师正处于不确定期，尚待监管机构就 即将施行的反垄断法提供补充说明和实施细节，并 成立法律执行的相关机构。 Andrew McGinty 是路伟上海代表处的合伙人， 主要负责事务所反垄断法业务的筹备工作。他表 示：“我们缺乏法律实施的细节要求。这是我们目前 在为客户提供详细意见时面临的最大困难。” 尽管立法在宏观上符合欧盟的竞争体制，但在路 伟关于反垄断法的最新简报首页，表达了与新法律 相关的若干忧虑。首页印有一幅卡通漫画，在大富 翁游戏板上，国有企业正在欢呼，而游戏板的另一 个方格内则写有：“举报竞争者－鼓励免费停车。” 漫画暗指法律对国有企业的各种豁免规定，以 及依据任何书面投诉即可展开调查，但对虚假举报 并未制定惩罚规定。 鉴于反垄断问题的敏感，律师对目前或近期业 务的详细情况普遍保持沉默。但初期的不确定性 并未影响部分事务所积极满足长期需求增长的准 备工作。 Alex Potter是富而德反垄断业务合伙人，事务 所不久前将他由伦敦借调至北京代表处，旨在增加 对中国反垄断业务的关注度。 Potter表示：“几年前，我们已有一支团队在北 京开始代理与外资并购相关的竞争和反垄断审查业 务，该团队的工作十分繁重。” “我们认为，现在有必要从反垄断法高度发达的地 区借调律师，以帮助中国代表处渡过不确定期。客 户都希望了解8月后的情况和应对措施。因此，许多 律所已经争相开始系统培训该领域的工作人员。”
对于路伟而言，反垄断法使事务所原本的辅助业 务转变成为核心业务领域。 事务所已经在中国安排了一位专业律师，现正 从布鲁塞尔办公室借调高级竞争法规律师Kirstie Nicholson。 McGinty 表示：“由于此类顾问业务将有巨大的需 求增长，我们必须认真对待。” “我们认为，在反垄断法施行前的时期是通向机 遇的窗口，因为相关企业会聘请我们提供服务，而 我们有能力为他们提供解决方案。” 对于本地事务所，金杜北京总部的高级合伙人 宁宣凤透露，事务所在该领域已有五位律师，计划 近期再增加一位。 宁宣凤表示，8月之后，有些现有业务可能会违 背新法规定，因此客户需要我们在合规方面提供建 议。“现有客户需要我们提供服务，我们也在争取 （其它）客户。” 有些国际所则采取更为谨慎的做法，尤其是在中 国的并购领域比较成熟的大型事务所。 2007年，高伟绅北京代表处新增一位专职反垄 断律师，并表示，根据反垄断法施行规则公布后的 情况和业务在未来六个月内的发展情况，可能考虑 聘用一位高级专职律师或合伙人。 与之类似，年利达北京合伙人Thomas Ng表示， 其事务所将密切关注反垄断法实施后额外工作的增 加情况。“业务将会增长。问题是增长的幅度会有 多大，且增长的速度会有多快。” “我们正考虑所有的可能性，包括双向借调（布 鲁塞尔至中国，反之亦然）。境外律师事务所在中 国反垄断法服务中能够发挥作用，但具体能发挥多
大作用尚待观察。” 安德慎律师事务所上海合伙人C a m p b e l l Davidson曾就反垄断法为事务所编写简报，他也 认为业务将增长，但至少在两三年内，反垄断不会 成为多数事务所的独立业务领域。
改变业务组合 多数事务所认同，反垄断法会改变现有法律业务的 平衡。 目前，该领域的工作主要是服务于并购交 易。新法律施行后，定价行为和与滥用市场主导地 位相关的问题可能成为客户的主要忧虑，需要事务 所提供合规法律意见。 反垄断法的出台恰逢政府对通货膨胀及其派生的 社会动荡因素忧心重重的时期。因此，贝克•麦坚时 全球竞争业务上海律师Lui ChunFai认为，定价机制 会成为立法机构考虑的重点。 Lui预计，法律施行初期，在合规审查方面将为律 师事务所产生大量工作。 对于合规审查喧嚣之后的情况，诸多业内人士认 为，中国的反垄断业务达到其它主要国家法律市场 的水平还需要较长时间。 安德慎的Davidson表示：“我认为，中国不会直 接效仿西方竞争监管机构倾向运用诉讼的方式来维 护竞争环境。” “中国的竞争监管机构在新法实施后将会承担一定 压力，但是一开始不会有太多诉讼发生。” 总而言之，反垄断法将产生新的监管机构和执 行机构，并对每个行业产生广泛且深刻的影响。 跨国公司需要将他们在西方市场的运用的规则移 植到中国。
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NEWS >> IN BRIEF NEWS
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ISSUE 5.3
LONG AN LAUNCHES PATENT AGENCY BUSINESS
ANALYSIS
Beijing-headquartered Long An law firm has received the nod from the State Intellectual Property Office (SIPO) to engage in patent agency business, becoming the 24th law firm in China to have the capability to represent clients before the patent office under the name of its own law firm. Some firms, like Boss & Young and Zhong Lun, have established a separate IP agency firm to facilitate clients’ needs. Currently, Long An’s patent practice group includes five patent attorneys and a number of patent agents.
Management reshuffle signals strong desire for growth
QUICK FACTS There are 24 law firms approved by the SIPO to engage in patent agency business, including nine firms based in Beijing. Source: SIPO
LEHMAN TO OPEN LEGAL AID CLINIC In May, Lehman, Lee & Xu will establish one of the first privately run legal aid clinics. The Lehman Legal Aid will play an important role to support the country’s rule of law and legal education. The clinic will initially aid foreign nationals needing no or low-cost legal services. By doing so, it will impart practical legal skills to recent graduates Edward Lehman, and law students and Lehman, Lee & Xu ultimately produce effective lawyers. Although foreign citizens comprise some of the most visibly wealthy residents of China, there are in fact thousands of immigrants from Asian and African countries who are often in economically disadvantaged circumstances. Many of them cannot afford the services of fullservice law firms, and many have difficulty taking advantage of public legal services due to the Chinese language barrier. The firm’s future plans include expanding the clinic’s services to all nationalities, especially to those most socially vulnerable: women and children.
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I
t is probably a phenomenon unique to China that top executives of some major state-owned enterprises have often rotated across companies. A typical example can be found in the telecommunication sector. A few years ago, the CEO of China Unicom at the time, Wang Jianzhou, was appointed to his current position as the CEO of China Mobile, while the former president of China Telecom, Chang Xiaobing, is now serving as the chairman of the board at China Unicom, and Wang Xiaochu, former vice president of China Mobile, is now the CEO of China Telecom. However, the first three months of 2008 have seen a similar reshuffle in the top management of international law firms
active in the Greater China region. A number of senior partners in the bigger firms with more established mainland presence are making the move to smaller practices, where they can help these firms grow with their previous management experience. Senior partners with an abundance of China experience are in strong demand and the relatively newer foreign faces in the region are benefiting. Following Peter Neumann’s departure from Faegre & Benson’s Shanghai office to head Greenberg Traurig’s new Shanghai office, Baker & McKenzie’s former Shanghai co-managing partner, John Grobowski, has joined Faegre in Shanghai and succeeded Peter Neumann as the firm’s co-head of China practice.
“All international firms with offices overseas will look at China as a very important part of their international plan and want to take advantages of the growth that exists here” JOHN GROBOWSKI, FAEGRE & BENSON
NEWS IN BRIEF
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I n a n i nter v iew with A LB, Joh n Grobowski explained the main reasons for his move to Faegre, saying: “After nearly 17 years at Baker & McKenzie, I decided to seek a new opportunity with a new set of challenges. Faegre & Benson appealed to me as a particularly dynamic firm with a strong commitment to China.” Under John Grobowski and Zhang Da n ia n’s co -leadersh ip at Ba kers’ Shanghai office, the Shanghai team had grown from zero to 150 people within only five years since the official opening in February 2003. Feeling that it might be difficult for Bakers to get too much bigger, Grobowski started looking for a firm that was smaller but with a real commitment to high quality work. It was not a sudden move for Grobowski, as he started looking for new opportunities about a year ago. During the searching period, he had been approached by several other firms; some had recently arrived in China and some had been here for a number of years. “There are a lot of interests [of international firms] in finding senior people with experience in China to head up offices here,” said Grobowski. He pointed out that the economy in many countries had slowed down quite a bit, and perhaps the US might even be in a recession at the present. But in the case of China, the economy is doing well and still growing. “All international firms with offices overseas will look at China as a very important part of their international plan and want to take advantages of the growth. So foreign firms are still coming in and the ones are doing well here are trying to expand,” he said. Grobowski’s appointment is set to facilitate Faegre’s expansion plan in China, as Grobowski revealed that the Shanghai team was to move into a new office space three times bigger than the current one. The headcount in Shanghai is expected to double to over 50 in the next two years. In addition, his top agenda at the new firm includes broadening the practice areas, from corporate and commercial to IP, tax and banking & finance. Nick Seddon’s decision to move from DLA Piper to Heller Ehrman has also made the headlines across the region (see page 27). Seddon, currently on ‘garden leave’ after stepping down as DLA Piper’s Asia head at the end of last year, told ALB that he was looking forward to this summer, when he becomes Heller Ehrman’s regional managing shareholder in Asia. Seddon has been credited with the rapid expansion of DLA Piper in the region,
which showed rapid revenue and headcount growth, and the opening of two new offices, under his leadership. For Seddon, the most beneficial thing for him in joining Heller Ehrman will be the opportunity to play a leading role in growing a practice. “Heller Ehrman has a desire to grow their Asian practices, and that’s what I enjoy doing and what’s what I had been able to do at DLA Piper in the last four years,” said Seddon. Heller Ehrman has seen steady growth since the opening of its first Asian office in Hong Kong in 1993. The firm later opened offices in Beijing, Singapore and, most recently, Shanghai. The move is an indication of Heller Ehrman’s plan for further expansion in China and Asia. Several other international firms have similar plans; Seddon said that he had had a number of offers. “People see Asia as one of the biggest opportunities within the global legal market, particularly given the current economic uncertainty in the US and Europe,” said Seddon. “Though it is remarkable competitive, and that makes life much more difficult here. But I am sure that international firms are looking to Asia as the big part of their future.” The beginning of each year is a popular time for partners to move across fi rms because a lot of firms have financial years starting in January. However, for someone to move from a management position in one firm to a management position in another, Seddon noted, is not that usual. Although many firms prefer internal promotions for growth and expansion, some partners in international firms still expect to see lateral hires remaining robust. “A great number of firms are coming to China, and talented partners and senior associates are the most sought-after. There is huge competition between firms for a very limited pool of top talent,” said Fred Chang, merchant banking and structured credit specialist who recently joined Lovells in Beijing from White & Case. “Although the current market conditions cause firms to be cautious, in terms of growth, we still will see movement of people,” Chang added. “In the downward turn of the business circle, a number of firms are facing significant challenges that threaten their survival in the market, so their partners will seek better platforms for long-term strength,” he continued. Nevertheless, this might not be completely true. With fi rms being increasingly committed to the China market, they will try their hardest to hold on to their own top talent. ALB
>> NEWS >>
GERMAN FIRM SPOTS OPPORTUNITIES IN HANGZHOU Several lawyers of Schindhelm, an international law firm headquartered in Osnabrueck, Germany with a representative office in Shanghai, were seen in Hangzhou a month ago paying a visit to local counterpart T & C law firm – one of the largest firms in Zhejiang province. Schindhelm specialises in advising M&A transactions, joint ventures, listings and international trade. Between June 2006 and July 2007, the firm had closed 25 M&A deals with a total value of US$608m. The Schindhelm delegation was led by Shanghai senior manager Ole Brühl and counsel Zong Xuzhi. At the meeting, the two firms briefed each other on their business and practice areas. Both sides expressed intentions to establish cooperative relationships to capitalise on the boom in Yangtze River Delta.
BEIJING LAWYER ADVISES LAOS GOVERNMENT ON WTO Wang Lei, a partner with Gaopeng & Partners in Beijing, is the former Deputy Chief of the WTO Desk in the Ministry of Foreign Trade and Economic Co-operation, and has engaged in negotiations Wang Lei, of China’s WTO Gaopeng & Partners accession. At the end of 2007, Wang was invited by the Laos government to advise on Laos’ WTO accession in Vientiane. He gave presentations to officials from Laos government bodies, including the Ministry of Commerce and Industry, the Ministry of Agriculture and Forest, the Ministry of Justice, Laos Customs and Laos Central Bank. Wang’s advice covered a wide range of issues, such as market access, tariff concession, service commitments, state trading, double pricing and judicial review.
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NEWS >>
ISSUE 5.3
SINGAPORE UPDATE
证券行业委员会发布 库存股实务准则
新
加坡公司法规定，上市公司可通过股份回购，购买自己公司的股份， 购回股份可留在公司作为库存股(treasury shares)。库存股没有投票 权，不计入股本，也不参与分红。公司可将库存股出售变现，或分配 给内部员工作为股权激励，也可在公司股权并购或资产并购时作为对价支付。 2007年12月10日，新加坡证券行业委员会(Securities Industry Council)推出 公司库存股操作实务准则（“准则”），对新加坡并购法案关于库存股的相关内 容做出下列指引：
并购法案总则不含对库存股规定 准则提到，由于库存股没有投票权，不计入股本，因此并购法案中规定的收 购要约不针对库存股。
转让出售库存股目的可能落空 与上述同样道理，库存股之转让或出售将被视为新股发行，需获得股东大 会批准，否则该转让或出售之目的将落空，除非先前即已签订股份转让或出 售合同。
股本信息需包含库存股 根据并购法案规定，在收购方公告收购要约后，被收购公司需向对方提供有 关股份的细节。准则对此规定，被收购公司需提供本公司持有的库存股情况， 并就转让或出让库存股的协议做出详细说明。
要约在无条件后方可针对库存股 并购法案规定对附条件收购要约，被收购公司董事会可对该收购要约进行表 决承诺。对此，准则规定，在附条件的收购要约有效期间，被收购公司不得对 收购库存股要约做出承诺，除非该要约已成为无条件收购。
库存股不计入最多可并购已发行股本 在收购要约期间，需计算最多可收购具有投票权股本，收购要约将转为无条 件要约。因库存股不具投票权，因此准则规定，在计 算可收购股本时不得计入库存股。若已签有股份转让 或出售合同，必须在该要约期间对库存股进行转让或 出售，须向证券行业委员会进行相关咨询。
股份回购需披露库存股信息
Chen Shu
陳姝 企業融資部法律專員 Ph: (65) 6322-2230 Fax: (65) 6534-0833 E-mail: chenshu@loopartners.com.sg
型国有企业高管经常在各个公司之间轮岗，这是我国的独特现象。电信 行业即是典型例证。数年前任中国联通总裁的王建宙现任中国移动总 裁，中国电信前任总裁常小兵现任中国联通董事长，中国移动前任副总裁王晓 初现任中国电信总裁。 2008年的第一季度，大中华地区国际律师事务所的高层也出现类似的洗牌 现象。一些拥有丰富大陆业务经验的高级合伙人纷纷加盟在该地区规模较小的 国际律所，希望凭借以往的管理经验，帮助新所在该地区实现迅速发展。行业 对拥有丰富中国经验的高级合伙人需求旺盛，而进入该地区相对较晚的境外律 师事务所却获益匪浅。 继Peter Neumann离开斐格上海代表处担任Greengerg Traurig新成立的上 海办公室主管后，贝克 • 麦坚时前上海联席执行合伙人John Grobowski加盟斐 格上海代表处，填补Peter Neumann离任后的管理空缺。 John Grobowski在对《亚洲法律杂志》解释加入斐格的主要原因时表示：“ 在贝克 • 麦坚时工作近17年后，我决定迎接新挑战，寻找新的发展机遇。斐格 在华业务活跃，对中国市场拥有坚定信心，对我来说很有吸引力。” 在John Grobowski 和张大年的联合领导下，贝克上海代表处自2003年2月 成立后，团队规模从零点起步，五年内便发展至150人。Grobowski 感到贝克 在上海的规模继续增长难度较高，因此期望能够带领规模较小，但专注于提供 高质量服务的国际律所在沪成长壮大。 Grobowski的离职并不突然，他一年前就已经开始寻找新的发展机会。在此 期间，不少律所曾向其招手，其中有些刚进入中国，有些已华开展业务数年。 Grobowski 表示：“（国际律所）对聘请有丰富中国经验的高管人员来负责
International Court of Arbitration eyes Hong Kong presence
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盧寶琪 企業融資部资深專員 Ph: (65) 6322-2231 Fax: (65) 6534-0833 E-mail: kittylo@loopartners.com.sg
俊昭法律事務所
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大
ARBITRATION
并购法案附录2规定，公司在股份回购后需披露公 司已发行的各级别股份，若公司此时持有库存股， 也需对此做出同样披露。
88 Amoy Street, Level Three Singapore 069907
管理层重新洗牌体现强劲增长需求
Kitty Lo
he International Court of Arbitration of the International Chamber of Commerce (ICC) and the Secretariat of the ICC Court will locate their new offices in Hong Kong and Singapore. A branch of the Secretariat of the Court with a case management team to administer cases in the region under the ICC Rules of Arbitration will be opened in Hong Kong. A liaison office dedicated to ICC Dispute Resolution Services will be opened in Singapore. The ICC International Court of Arbitration is one of the leading
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中国办事处的兴趣非常浓厚。” 他指出，很多国家的经济增速放缓，就目前情况来看，美国甚至可能出现衰 退。但中国经济仍情况良好且保持增长。 他表示：“所有开设海外办事处的国际 律师事务所都将把中国视为国际发展计划中的重要组成部分，希望借助中国的 经济增长带动律所的发展。因此，仍有大量境外律师事务所进入中国，同时中 国业务运作良好的事务所也希望进一步扩大在华规模。” Grobowski的加入旨在推动斐格中国业务的扩张计划，他透露，斐格上海办 事处不久将迁新址，办公空间是原来的三倍。预计未来两年内，上海办事处的 律师数目将翻番，超过50人。此外，他在新事务所的首要任务还包括拓展公 司、IP、税务、银行和金融领域的业务。 Nick Seddon决定离开欧华加盟海陆国际律师事务所亦成为业界的头条新闻 （参见第27页）。Seddon去年底结束欧华亚洲主管任期后，现正在‘花园休假’ 时期。他向《亚洲法律杂志》透露，他将于今年初夏开始担任海陆亚洲地区执 行股东，对此他充满期待。 Seddon对近年来欧华在亚洲地区的快速发展功不可没。在他领导下，事务 所的收入和律师数目快速增长，并成立两处新办事处。对Seddon而言，加盟 海陆后他将有机会在促进该所亚洲业务增长的过程中发挥领导作用，这是吸引 他加入该所的最主要原因。 Seddon表示：“海陆期望推动亚洲业务增长，这正是我的专长，也是过去四 年内我在欧华发挥的主要作用。” 海陆于1993年在香港成立首个亚洲办事处，业务稳定增长，随后在北京和 新加坡成立代表处，近期又刚刚开设了上海办公室。Seddon的加盟表明海陆 有意进一步拓展中国和亚洲市场。诸多其它国际所也有类似的发展计划，Nick 承认，他曾收到多家事务所的邀请。 Seddon表示：“业界认为亚洲是全球法律市场机遇最多的地区之一，尤其在 美国和欧洲经济前景不确定的情况下。但是，该地区的竞争也日趋激烈，业务 发展的难度也随之增加。但我相信，跨国律师事务所仍然将亚洲业务视为其未 来发展的重要驱动力。” 据统计，年初一般是合伙人跳槽的活跃时期，因为大多律师事务所的财政年 度始于1月。但Seddon指出，从一家事务所的管理职位跳槽至另一家事务所的 管理职位，这种情况却并不常见。 尽管很多事务所更喜欢通过内部晋升促进业务扩展和规模增长，但也有律所 偏向从外部招聘合伙人来增加竞争实力。 Fred Chang是商业银行和结构信贷领域的合伙人，近期离开美国伟凯北京 代表处加盟英国路伟北京代表处，他表示：“大量事务所希望进入中国，经验 丰富的合伙人和高级律师备受青睐。由于顶尖人才有限，事务所之间的人才竞 争十分激烈。” Chang还表示：“在规模增长方面，尽管目前的市场情况会令事务所保持谨 慎，但任会有较多人才流动。在业务的下滑周期，有些事务所将面临严峻挑 战，因此合伙人会寻找更好的平台，以确保自身长期利益。” 不过，实际人才流动情况可能并非像人们预期的那样频繁。随着事务所日益 看重中国市场，他们必将竭尽全力挽留顶尖人才。
SHANGHAI UPDATE
上海市工商行政管理局
《有限责任公司股权出质登记办法(试行 《有限责任公司股权出质登记办法 试行)》介绍 》介绍
上
海市工商行政管理局于2007年12月11日印发了《有限责任公司股权出 质登记办法(试行)》(以下简称 《 “ 办法》”), 于2008年1月1日起施行。1 《办法》规定的登记程序等内容旨在与《中华人民共和国物权法》(以 下简称 《 “ 物权法》”)第二百二十六条有关股权出质的规定相配套, 为此类业务 的办理提供了操作依据。 一、《办法》的适用范围 《物权法》第二百二十六条规定: “以基金份额、证券登记结算机构登记的 股权出质的, 质权自证券登记结算机构办理出质登记时设立; 以其他股权出 质的, 质权自工商行政管理部门办理出质登记时设立。” 2 《办法》规定: “股东将自己所持有的、在本市登记注册的有限责任公司 的股权出质, 出质人和质权人将股权出质情况向工商行政管理机关申请办 理登记的, 适用本办法。”同时, 还明确将外商投资企业股权出质登记排除 在其适用范围之外。 因此,《办法》仅适用于在上海市登记的内资有限责任公司的股权出质登 记, 适用范围较《物权法》规定有所缩小。3
二、 登记主管机关 上海市工商行政管理局及其分局是股权出质登记的主管机关,其对申请材 料只进行形式审查。该规定与《物权法》建立的物权登记制度原则相统一。 三、登记事项 《办法》规定了股权出质登记应包括出质人和质权人名称、出质股权数 额、质押期限。对于质押期限, 登记主管机关允许当事人自由约定。 四、 其他事项 《办法》还对股权出质登记需提交的文件、程序及公示查询等事项作了 规定, 内容上涵盖内资有限责任公司股权质押登记的基本方面。 五、 实践操作 目前, 国家工商行政管理总局对股权出质登记尚未制定具体实施办法, 但 上海、苏州、武汉等地相继出台地方规定并已开始办理。上海各区县分局 办理此类业务时做法不尽统一, 将随着业务的发展逐渐完善并趋于稳定。 综上所述, 虽然《办法》的操作实践仍存在不确定性, 但其发布和施行使得内 资有限责任公司的股权出质登记有了具体的依据, 具有现实意义。 1. 据了解, 武汉市工商行政管理局、苏州市吴中工商行政管理局也已制定了此类股权出质登记的相关规 定, 分别为《武汉市有限责任公司股权出质登记暂行规定(试行)》和《有限责任公司股权出质登记暂行 规定》。其中,《武汉市有限责任公司股权出质登记暂行规定(试行)》于2008年2月20日起施行。由于 获取信息受限, 有关上述规定的具体内容和信息尚无法知晓。 2. 根据全国人民代表大会常务委员会法制工作委员会对《物权法》的理解, 第二百二十六条中的“证券 登记结算机构登记的股权”包括上市公司的股权、公开发行股份的公司的股权、非公开发行但股东 在200人以上的公司的股权; “其它股权”指不在证券登记结算机构 登记的股权, 包括有限责任公司的股权、非公开发行的股东在200 人以下的股份有限公司的股权等。 3. 经与上海市工商行政管理局及部分区分局的电话咨询, 目前外商投 资企业股权出质仍按照原对外贸易经济合作部、国家工商行政管 理总局1997年颁发的《关于外商投资企业投资者股权变更的若干 规定》和国家工商行政管理总局、商务部、海关总署、国家外汇 管理局2006年颁发《关于外商投资的公司审批登记管理法律适用 若干问题的执行意见》的规定进行操作。
bodies in the resolution of cross-border business disputes, and the ICC Rules of Arbitration are widely referred to in business contracts. ALB
梅亚君, 合伙人 通力律师事务所 电子邮件: michael.mei@llinkslaw.com
Michael Mei
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NEWS >>
ISSUE 5.3
SHANGHAI
INTELLECTUAL PROPERTY UPDATE
Skadden steps Arps, Slate, Meagher & Supply Chain Disruptions Skadden, Flom has opened a Shanghai office,
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hief strategy officers and their ilk – people who are paid to anticipate problems before they crop up – have recognized how critical China is in the global supply chain, and are running scenarios for supply chain interruption. Consolidating manufacturing through one or just a few export sources means that global distribution networks might at some point be held hostage at some chokepoint. No one wants a blockage in China causing their in-market stock and subsequent sales to plunge. Towards this end, Rouse has begun carrying out risk assessments on supply chain vulnerabilities from an IP perspective. Secure supply chains almost always are the first step in these assessments, as companies frequently discover that their OEM manufacturers are regularly involved in counterfeiting. The basics are obvious to most IP experts: IP provisions or clauses in supplier agreements must be quite specific in terms of who owns the IP and who is authorized to use it, all with a view to protecting it. Confidential information as well as brands, trademarks and of course patented IP should be specifically delineated, with signed or chopped receipts at every step. Within factories, specific handling procedures for the tooling – especially branded tooling – are needed. Who can access the tooling? Is it under lock and key? Under what circumstances can others access it? Are production record procedures tight enough so that over-production can be documented? Best practice now dictates a separate tooling or mould contract in addition to the supplier contract. Clauses in this additional contract typically specify ownership of the tooling, and reclamation procedures when the agreement is terminated. However, in the event of a breach of contract, is the supplier required to return the tooling immediately, before the case is adjudicated either in arbitration or Chinese courts? A manufacturer's biggest fear is that the tooling be held hostage until agreement or judgment is reached, which could be months down the road. Happily, if in this scenario is not specifically addressed in the supplier agreement, a manufacturer still has options, among these pre-trial injunction. While this step requires a guarantee or bond placed with the court as well as obvious intent to file, it is one of the most likely methods to 'liberate' tooling held by the supplier. The China reality is that most manufacturing companies are closing factories elsewhere and consolidating in China. If more than 60% of your company's products come through one channel, regardless of whether it is through your own operations or Chinese outsourcing, Rouse recommends a risk assessment analysis.
Diana Matthias Rouse & Co. International Suite 2601, Central Plaza 227 Huang Pi Road (North) Shanghai 200003 China tel: +86 21 6375 8811 fax: +86 21 6375 8060 dmatthias@iprights.com www.iprights.com
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Diana Matthias
its second in Mainland China, adding to a long-established Beijing presence that commenced in 1991. The Shanghai office, to focus on the practice areas of M&A, corporate finance and real estate, will be headed by Skadden corporate partner Gregory Miao. Miao is the current head of the fi rm’s China practice, and previously divided his time between Hong Kong and Beijing. He has represented clients Gregory Miao, Skadden in China-related transactions since 1985, and speaks fluent Mandarin and Shanghainese. Miao will be supported by real estate partner Ed Sheremeta, who will relocate from the fi rm’s Tokyo office during the second quarter of the year.
HANGZHOU
Liuhe revamps with S
hortly after the Chinese New Year holiday, Zhejiang Liuhe law firm completed its merger with Hangzhou firm Yaxiya and moved into the newest top-grade office building in Huanglong CBD. The new firm, which continues to be named Liuhe, has 29 partners and more than 80 lawyers. The revamped Liuhe will be primarily engaged in general corporate legal practice, listings, finance and insurance, real estate, intellectual property and cross-border investment. Zheng Jindu, founding and managing partner of Liuhe, said that the merger was intended to create a larger and stronger platform in Zhejiang to provide better legal services to local enterprises. “The merger can further boost our competitive advantages in Zhejiang province, as well as create new growth opportunities for us to advise Zhejiang clients nationally and even internationally.” The increasingly active Zhejiang entrepreneurs doing business across China and investing overseas are fuelling the firm’s ambition and confidence. “Most of our clients are Z hejia ng ent er pr ises, so there won’t be much competition from top-tier Beijing a nd Sha nghai
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INTERNATIONAL TAX UPDATE
into Shanghai The move brings Skadden’s office total in the Asia-Pacific region to six. In Greater China, the firm has a presence in Hong Kong in addition to Beijing and Shanghai, with its other regional offices being located in Tokyo, Singapore and Sydney. ALB
美国世达进军上海
美
国世达律师事务所早在1991年就已在北京成立了代表处。今年年初，该 所获得批准在上海成立其第二家大陆代表处。 上海代表处的主要业务领域包括并购、公司金融和房地产，由世达合伙人 Gregory Miao负责。Miao现任事务所中国业务主管，此前主要往返于香港和 北京之间。他自1985年开始负责该所与中国相关的交易，并能使用流利的普 通话和上海话交流。房地产业务的合伙人Ed Sheremeta将从东京办事处调任 上海，为Miao提供协助。 上海办事处的成立使世达亚太地区分支机构总数增至六家。在大中华地区， 事务所在香港、北京和上海设有代表处，其它办公室分别位于东京、新加坡 和悉尼。
merger firms,” Zheng said. Although it will take more than three months for the two firms to fully integrate, Liuhe has already set a number of goals for the next three years, including growing the total number of lawyers to 120, establishing more than three branch offices and increasing the annual revenue to more than US$11m. ALB
浙江六和合并后焕然一新
春
节过后不久，浙江六和律师事务所与浙江亚细亚律师事务所完成合并， 并将办公室迁入杭州黄龙商圈最顶级的写字楼。合并后的事务所将继续 使用六和的品牌。新所规模亦得以扩大，目前拥有29位合伙人，律师总数超过 80。焕然一新的六和将主要在公司法律事务、 证券、金融与保险、房地产、知识产权和跨境 投资领域开展业务。 六和创始人兼执行合伙人郑金都表示，合并 旨在为六和创造更大更稳固的平台，从而为本 地企业提供更好的法律服务。“合并可以进一步 提升事务所在浙江省的竞争优势，并创造全新 增长机会，使事务所有能力为国内和国际客户 提供法律服务。” 浙江企业在全国的业务扩展和不断增加的海外 投资成为事务所雄心壮志的动力源泉。郑律师表 示：“事务所客户主要是浙江企业，因此不会面对 太多来自于北京和上海顶尖事务所的竞争。” 尽管两家事务所完全整合还需要至少三个月 时间，新事务所已经为未来三年制定多项具体 目标，包括将律师总数增加至120人，开设三 家以上的分支机构，以及使年收入达到一千万 美元以上。
OECD – Mutual Administrative Assistance in Tax Matters
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he UK is close to ratifying the Council of Europe CoE/ OECD Convention on Mutual Administrative Assistance in Tax Matters. This allows for cross-border exchange of tax information, cross-border service of documents in tax matters and obliges countries to collect tax on behalf of each other. The UK signed the Treaty on 24 May 2007 and was the 15th country to do so, the others being Azerbaijan, Belgium, Canada, Denmark, Finland, France, Iceland, Italy, the Netherlands, Norway, Poland, Sweden, Ukraine and the United States. The UK Statutory Instrument giving effect to the Treaty is SI 2007/2126. The SI was considered by the UK Parliament Delegated Legislation Committee on 10 July 2007. Some of the main safeguards that have been mentioned by Government Ministers during the Parliamentary debates are: • Taxpayer information will only be supplied to another state when HMRC are satisfied that it will be kept confidential to the same extent as it would be in the UK. • Taxpayer information will not be provided where doing so would endanger the human rights of an individual. • The requesting state must have gone through all necessary legal processes to prove that the tax debt exists before the UK will assist in recovery. • The request for information or assistance must be in relation to a tax that is comparable with UK tax, otherwise the UK will not enforce it. • Compliance will not be made with requests for information or assistance from other states which are contrary to generally accepted taxation principles. • Compliance will not be made with requests for information or assistance where HMRC feels that the costs would be disproportionate.
OEDC consultation on tax treaty treatment of services The OECD Discussion Draft proposed an extension of the taxing rights of some countries (source based countries) in respect of services provided in those countries by non resident service providers when the level of provision does not constitute a permanent establishment in the country, by reference to the current definition of permanent establishment. Many tax advisers are opposed to such a suggestion as they believe the proposal should be based on the concept of permanent establishment which is well understood.
Debbie Annells, Managing Director, AzureTax Ltd, Chartered Tax Advisers Suite 4708, The Center, 99 Queen’s Road, Central, 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.
Debbie Annells
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NEWS >>
ISSUE 5.3
BEIJING
CHINA UPDATE
Taylor Wessing gets set for China Issues Implementing Beijing launch
Rules of New Enterprise Income Tax Law
T
he long awaited Implementing Rules of the Enterprise Income Tax Law (the “Rules”) were finally promulgated on December 6, 2007. They are meant to supplement and clarify the Enterprise Income Tax Law (the “ITL”) when the ITL became effective on January 1, 2008. Even though the Rules have successfully explained and expanded on certain aspects of the ITL, there are still many areas that are unclear and need further clarification by the law makers. The Rules provide clearer guidance on certain tax issues that are important to foreign investors under this new unified tax treatment. Ten percent withholding tax now applies to all dividends distributed to its foreign investors by Chinese enterprise with foreign investments. Since Hong Kong, Singapore and Mauritius have entered into arrangements with China reducing the withholding tax rate to 5%, these jurisdictions are now the popular choice for foreign investors to use for their investments into China. The Rules also establish a broad definition for the concept of “establishment” for both nonresident enterprises and resident enterprises. The appointment of any business agent in China to store and deliver goods constitutes an “establishment” of a non-resident enterprise. However, the establishment of a presence in China which has substantial and overall control over an enterprise which is incorporated and registered overseas would render such foreign enterprise taxable within China. The new tax regime continues to encourage investments in high tech areas. The Rules stipulate the criteria of “new and high-tech enterprises” that qualify for the preferential 15% tax rate. These criteria include independent ownership of “core IP rights” and required percentages of R&D expenditures, R&D personnel and income derived from high-tech products, etc. Furthermore, any investments in private, small or medium-sized new and high-tech enterprises, for longer than two years would entitle an investor to a deduction of 70% of the investment amount from the taxable income of such an enterprise in the third year following the investment. However, the Rules still leave a lot of important questions unanswered. For instance, even though the Rules set forth the criteria for “new and high-tech enterprises”, they are silent on the required percentages in order for these enterprises to qualify for the special tax treatment. Towards the end of 2007, the State Council issued a circular detailing the five-year transitional arrangements for those enterprises currently enjoying preferential treatments. This is a good indication that more circulars and guidelines will be issued to supplement and implement the ITL and the Rules. Written by: Jeanette Chan, partner & Sue Yang, paralegal Paul, Weiss, Rifkind, Wharton & Garrison For more information please contact: Paul, Weiss Rifkind, Wharton & Garrison Unit 3601, Fortune Plaza Office Tower A No. 7 Dong Sanhuan Zhonglu Chao Yang District, Beijing 100020, PRC Jeanette K. Chan, partner Email: jchan@paulweiss.com Ph: (8621) 5828-6300 or (852) 2536-9933
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Jeanette K. Chan
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urope-focused law firm Taylor Wessing is preparing to open a new office in Beijing, in order to build on the work of its existing Shanghai office when its second licence is approved. The plan is for the new office to work in tandem with Shanghai to service the growing number of Chinese companies looking to move into Europe, as well as European entities looking for growth in China. The fi rm is particularly known for its IP expertise. Although Taylor Wessing has grown in Asia and has recently opened in Dubai, it has been reported the firm will retain its core European focus and will particularly look for further growth in new European Union member states. ALB
Taylor Wessing 北京代表处筹备完毕 aylor Wessing律师事务所以欧洲业务为主，正筹备开设北京代表处。在获 得司法部批准之后，北京代表处将成为其在华的第二家分支机构。该所已 在上海代表处为客户服务多年。 新办事处将配合上海办事处，为更多希望拓展欧洲市场的中国企业提供服 务，同时也将服务于希望发展中国业务的欧洲企业。此外该所在IP领域亦享 有盛誉。 尽管Taylor Wessing的亚洲业务不断成长，且于近期成立迪拜办事处，但是 事务所表示仍将保持欧洲业务重心，更加注重在欧盟新成员国发展业务。
T
Jun He senior counsel appointed by WTO I
n less than three months, Jun He will see its partner Zhang Yuejiao issue final rulings in trade disputes brought by WTO members. He will become the first judge from China on WTO’s highest judiciary body, the Appellate Body. Zhang was one of the four new members of the Appellate Body appointed by WTO late last year. The other three new members are Lilia Bautista of the Philippines, Jennifer Hillman of the US and Shotaro Oshima of Japan. Oshima and Zhang will commence their four-year terms of office on 1 June 2008; Bautista and Hillman started on 11 December 2007. In addition to being a senior counsel at Jun He’s Beijing head office, Zhang is an arbitrator on China’s International Trade and Economic Arbitration Commission, and serves as Vice President of China’s International Economic Law Society. Zhang has extensive experience in the areas of international trade, fi nance and investment. Between 1998 and 2004, she held various positions at the Asian Development Bank. Prior to that, she had been the Director-General of Law and Treaties at the Ministry of Foreign Trade and Economic Cooperation (now the Ministry of Commerce), where she was involved in drafting many of China’s trade laws such as the Foreign Trade Law, the Anti-Dumping Regulation and the Anti-Subsidy Regulation. Zhang has also served as one of China’s chief negotiators on intellectual property and was involved in the preparation of China’s patent law, trade mark law and copyright law. ALB
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ARBITRATION UPDATE
凡事以利于仲裁为原则
新
QUICK FACTS ABOUT THE WTO APPELLATE BODY • It is a standing body of seven persons that hears appeals from reports issued by panels in disputes brought by WTO members. Three members of the body hear and determine any one appeal. • It can uphold, modify or reverse the legal findings and conclusions of a panel. Its reports are adopted by the Dispute Settlement Body and unconditionally accepted by the parties to the dispute, unless there is a consensus against adoption. • Since its establishment in November 1995, the Appellate Body has issued 82 reports and every report has been adopted.
君合资深顾问获任WTO上诉 机构成员
今
年六月，君合律师事务所合伙人张月姣将成为WTO最高司法机构－上 诉机构（Appellate Body）里有史以来的首位中国法官，对WTO成员 国提交的贸易纠纷做出最终裁决。 去年底，WTO任命了上诉机构的四位新成员，张月姣是其中之一。其他三位 成员分别是菲律宾的Lilia Bautista、美国的Jennifer Hillman和日本的Shotaro Oshima。Oshima和张月姣将于2008年6月1日开始为期四年的任期，Bautista 和 Hillman的任期已于2007年12月11日开始。 除在君合的北京总部担任资深顾问外，张月姣还是中国国际经济贸易仲裁委 员会的仲裁员，并担任中国国际经济法学会副会长。 张月姣在国际贸易、金融和投资领域拥有丰富经验。1998年至2004年间， 她曾在亚洲开发银行担任多项职务。此前，她曾任外经贸部（现商务部）条法 司司长，参与过多部中国贸易法律的起草，包括对外贸易法、反倾销条例和反 补贴条例。张月姣还曾作为中国首席谈判专家之一处理国际知识产权纠纷，并 参与中国专利法、商标法和版权法的制定。
- 新加坡国际仲裁软环境略谈 1
加坡的经济政策一向持积极开放态度，这种务实进取的作风也在法 律界得到体现。按照通常逻辑，仲裁、法院、政府三者是相互独立 的。不过，在政府行政部门以及政府投资公司作为当事人参与经济 活动的情况下，政府针对仲裁制定的有关法制政策，必然会对该国的经济发 展、投资环境产生影响。早在1980年代，新加坡政府就开始规划将新加坡发 展成为国际纠纷解决中心，随后不断出台一系列有利于仲裁发展的政策，章显 出新加坡“对仲裁友好”态度的氛围，近期更是明确宣布：将国际商事仲裁作为 新加坡的法律服务行业发展方向之一，全力支持，力争把新加坡打造成为全球 最受欢迎的仲裁地之一。 新加坡推行有利于仲裁发展政策的一个典型例子就是，从1990年代中期起， 在政府作为一方当事人的建筑工程合同中，取消了原定由新加坡法院对国内合 同争议管辖的限制；同时，在政府同意交付仲裁的情形下，也取消了原定由政 府部长或者相当高级别的政府官员指定仲裁员的限制。这为当事人解决争议创 设了公平的游戏规则。由此，当事各方均有权选择是否采用仲裁解决纠纷，在 当事人提名仲裁员达不成一致意见时，则由新加坡国际仲裁中心（以下简称新 仲）主席根据该机构的指定仲裁员程序作出委任。 为了鼓励外国律师和仲裁员在新加坡开展仲裁业务，新加坡采取了积极有效 的措施。新加坡两度修改《法律职业法》，向外国律师全面开放仲裁市场；从 2004年9月起，外国律师就可以在新加坡代理国际或国内商事仲裁案件，出席 庭审或就仲裁程序中的任何问题提供意见。此外，新加坡政府还实行了国际仲 裁税收优惠政策。早自2002年起，已取消外国仲裁员的仲裁收入预留税；从 2007年7月起至2012年6月，在新加坡的开展国际仲裁业务的律师事务所，可 以从国际商事仲裁收入中免缴50%的所得税。 值得一提的是， 政府、国会、法院以及仲裁界均有共识：唯有完善的仲裁立 法结构才能根本保障新加坡对国际商事仲裁的吸引力。新加坡在1991年成立了 新加坡国际仲裁中心之后，随即成立《国际仲裁法》改革工作组，并于1994 年颁布新的《国际仲裁法》。《国际仲裁法》几乎完全采纳《联合国国际法贸 易委员会国际商事仲裁示范法》，由此告别了原先跟随英国仲裁制度模式的时 代。《国际仲裁法》规定：新仲主席取代新加坡高等法院，成为指定仲裁员的 权力机构。此举也保证了仲裁制度在新加坡法律体系中的独立性。同时，新加 坡政府对于仲裁实践中产生的法律问题保持高度的敏感，认真听取实践部门的 反馈，并从法规制定以及推动立法方面迅速作出反应。新加坡仲裁有关部门和 机构在立法上的积极作为，极大保证了仲裁程序的高效与稳定性，增强了当事 人选择新加坡作为仲裁地的信心。 新加坡政府积极推行凡事有利于仲裁的政策，获得国际上广泛的赞誉，吸引 了世界知名仲裁机构（例如美国仲裁协会、海牙国际常设仲裁法院）在新加坡 开设办事处。政府积极地为各国仲裁、调解等争议解决机构提供良好的办公场 所，为新加坡成为亚洲和世界的仲裁中心提供了优良的硬件保障。国际商事仲 裁能在亚洲焕发生机，新加坡正是一个理想的始发地。 1. 本文以新加坡国际仲裁中心副主席巫昱成教授在2007年11月2日 在《国际环境与亚洲实践-国际仲裁研讨会》上发表的演讲稿为基 础重新编译。
作者：杨娟，新加坡国际仲裁中心 By Sophia Yang, Assistant Counsel Singapore International Arbitration Centre Address: City Hall 3 St Andrew’s Road Singapore 178958 Tel: +65 6334 1277 Fax: + 65 6883 0823 Email: sophiayang@siac.org.sg Website: www.siac.org.sg
Sophia Yang
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NEWS >>
ISSUE 5.3
APPOINTMENTS
The US report Latham to boost Middle East presence Top US firm Latham and Watkins announced plans in February to expand its Middle East reach with the set-up of three new offices in the region. The firm will open shop in Dubai, Abu Dhabi and Doha over the next few months with recently hired corporate partner Rindala Beydoun heading the practice across the region. The offices will focus on M&A and private equity as well as project development and finance. Latham plans to transfer a number of partners and associates to boost staff count.
Milbank loses outsourcing partner to NYSE Euronext US firm Milbank Tweed Hadley & McCloy suffered a blow last month, when it lost its renowned outsourcing partner John Halvey to NYSE Euronext. Halvey joins NYSE Euronext as its new general counsel in March after almost 22 years at Milbank, where he founded the firm’s global IT outsourcing group and made his mark on outsourcing as a practice area. As general counsel, Halvey will report to CEO Duncan Niederauer and be responsible for all the group’s legal functions and will be a member of the management committee.
Cadwalader management overhaul Cadwalader Wickersham & Taft recently appointed global finance head Chris White as firm-wide chairman as part of a management restructure. The new role, which will begin in March, means an expansion of Cadwalader’s executive function into two offices, those of chairman and managing partner. Cadwalader’s current managing partner, Bob Link, will continue in his role.
LATERAL HIRES Name
Leaving
Joining
Location
Position
Practice
Rao Yao
Salans
HHP Attorneysat-Law
Shanghai
Partner
Corporate, M&A
Mao Tong
Hogan & Hartson
Bryan Cave
Hong Kong
Partner
M&A, private equity, securities
Ghislain de Mareuil
Paul Hastings
DLA Piper
Shanghai
Partner
M&A, investment
Nick Seddon
DLA Piper
Heller Ehrman
Hong Kong
Regional managing shareholder
Corporate, private equity
Fred Chang
White & Case
Lovells
Beijing
Partner
Leveraged and acquisition finance, private equity
Sharon Mann
Dewey Ballantine
Reed Smith Beijing
Partner
Investment, capital markets, trade issues
Hugh Scrogin
Dewey Ballantine
Reed Smith Beijing
Partner
Investment, M&A, dispute resolution
Michael Dardzinski
Dewey Ballantine
Reed Smith Beijing
Of counsel
M&A, dispute resolution
Practice Financial services and capital markets Maritime, offshore and commodity Antimonopoly Leveraged and acquisition finance
RELOCATIONS Name David Olsson
Firm Mallesons
From Melbourne
To Beijing
Position Partner
Paul Aston
Holman Fenwick & Willan Lovells
Singapore
Shanghai
Head of office
Brussels
Shanghai
Consultant
Lovells
London
Hong Kong
Partner
Kirstie Nicholson Gary Hamp
Dechert initiates 13 layoffs Despite reports of a record financial year – with US$836m in gross revenue and more than US$2.3m in profits per equity partner – US firm Dechert recently issued lay-off notices to 13 associates in its finance and real estate practice. The firm cited recent market conditions and a slowing economy for the lay-offs; however, recent reports suggest that the 13 will be offered positions in other practice groups.
¨ ROUNDUP
■ US firm White & Case has opened an office in Bucharest, Romania, bringing the firm’s international office count to 37. Former Linklaters lawyer Todd Shollenbarger will head the new office, which will include a team of 10 lawyers and focus on real estate, finance, energy and private equity. ■ Chicago-based firm McDermott Will & Emery set up an office in Houston this March. The office is the firm’s 15th and will be staffed by three energy lawyers from Houston firm Bracewell & Giuliani. The firm hopes to expand its operations in Houston and eventually bring the office up to 50 lawyers.
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Salans
HHP Attorneys-at-Law
Senior lawyer leaves international firm for local partnership Formerly a senior associate at Salans’ Shanghai office, Rao Yao has joined local Shanghai firm HHP Attorneys-at-Law as a partner, seeking more opportunities. Rao’s practice mainly focuses on the areas of company law, labour law, foreign direct investment and M&A. “Becoming a partner is one of the reasons driving many senior associates at international Rao Yao, firms to go back to local firms. However, not HHP Attorneys-at-Law all lawyers have their sights on admission to the upper echelons of a firm,” says Rao Yao. “For an attractive remuneration package and a good work-life balance, some senior lawyers will remain practising with international firms.” Personnel movement between international firms and local firms has become a two-way traffic, and Rao has left Salans for the partnership and leadership at HHP. “There is much more room for corporate and commercial lawyers to grow in local firms,” he says. “Most of the cross-border transactions taking place in China are governed by PRC laws, so Chinese firms and lawyers will play a leading role amid all external legal counsel in drafting documentations, structuring deals and advising on regulatory issues. Local experience and local resources are increasingly critical in cross-border transitions.” Rao’s addition has pushed the number of partners in HHP
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to seven. Currently, there are 11 fee earners in addition to the partners and the firm is expecting a further growth in headcount later this year. According to Rao, about 60% of HHP’s clients are multinational companies or foreign invested companies.
The UK report End of an era for Sullivan’s London chief
DLA Piper
Heller Ehrman
Heller Ehrman looks to Nick Seddon for expansion Following its Shanghai opening, Heller Ehrman has continued its expansion in Asia by appointing Nick Seddon, DLA Piper’s former Asia head, as the firm’s regional managing shareholder. Seddon will be based in the Hong Kong office. Seddon has been credited with the rapid expansion of DLA Piper in the region, which demonstrated rapid revenue and headcount growth under his leadership. Two new offices were also opened. Seddon succeeds Jonathan Palmer as the Nick Seddon, Heller Ehrman regional managing shareholder; Palmer completes his three-year term in Asia and returns to the US. Palmer expects to continue his antitrust and commercial disputes practice in the firm’s Seattle office, where he practised before moving to Hong Kong in 2005. Seddon stepped down from the role as DLA Piper’s managing director for Asia on 31 December 2007. Alastair Da Costa, a member of DLA Piper’s Global Board and previously the head of the EMEA Corporate Group, has taken over the role from Seddon, as from 1 January 2008. White & Case
Lovells
Lovells grows Greater China offices Lovells has succeeded in the lateral hire of Beijing-based structured credit specialist Fred Chang, who will join the firm’s corporate team in Beijing after his departure from White & Case along with associates Zhao Ying and Wang Liang. Chang is a leading corporate finance and derivatives lawyer in China, having held roles at Goldman Sachs and Deutsche Bank in Asia, where he was general counsel for five years. His practice focuses on advising Fred Chang, financial institutions on private equity and Lovells sophisticated debt and equity proprietary investments in China, specialising in complex debt and equity structures used for pre-IPO investments by the banks, private equity and hedge funds. In a further addition to its Greater China team, Lovells has flown out leveraged and acquisition finance partner Gary Hamp from London to give a new direction to the firm’s finance team in Hong Kong. Hamp’s move comes as part of a realignment of the Asian finance practice, which is to focus on high-end leveraged and acquisition finance work for private equity firms and investment banks. The firm has also announced that Kirstie Nicholson, a Brusselsbased consultant specialising in competition practice, will move to Shanghai in April to join corporate partner Andrew McGinty who has been closely involved in the debate surrounding the development of the new anti-monopoly law. In Brussels, Nicholson has worked on transactional and contentious competition law proceedings, including merger filings, Commission investigations and litigation before the European Courts.
Sullivan & Cromwell shook up its management structure last month with the appointment of partners Vanessa Blackmore and Robert Schlein as co-managing partners of the firm’s London office. They replace William Plapinger, who has served as managing partner of the City base for the past 13 years. Plapinger, however, will remain in London and continue as coordinator of the firm’s European offices.
Management still on the move at Slaughters The management revamp at Slaughter and May has continued, with real estate partner Graham White and corporate lawyer Paul Olney set to take up the roles of executive partner and practice partner respectively in May. Both positions will be for a five-year term, White being responsible for the firm’s overall management strategy with particular focus on people, systems, compliance and finance, and Olney taking on the task of developing the firm’s practice internally and facilitating relationships with international firms. Chris Saul, currently head of corporate, will join them in May, when he becomes senior partner and takes over from Tim Clark, who has held the position for the previous two terms.
Redundancies to hit Halliwells in London and Manchester Halliwells has resorted to a redundancy consultation process across its London-based corporate team, in response to the group lagging behind budget. An unconfirmed number of support staff in the Manchester office could also face redundancy as a result the firm’s move from five offices to a more expensive single site.
Morley and Dejonghe to head up A&O Allen & Overy will enter into new leadership late April, with managing partner David Morley recently getting the green light to take over from Guy Beringer as senior partner of the firm. Belgian managing partner and co-head of corporate Wim Dejonghe will join Morley at the helm as managing partner – he beat London finance partner and management board member Boyan Wells to the post and is to become the first non Londonbased partner to lead the firm. Dejonghe, who will make his way to London to succeed Morley, faced him in 2002 for the role of managing partner but was beaten to the position.
¨ ROUNDUP
■ Niche Scottish property firm Bell & Scott gets a new managing partner in November, newly elected partner Paul Jennings. ■ John Fordham is the new departmental managing partner for real estate in Freshfields Bruckhaus Derringer’s London office, taking over from Mark Wheelhouse. ■ Independent French firm Gide Loyrette Nouel announced plans to expand its London office space by a move to new premises, due to a sharp rise in revenue. It has also hired three partners.
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NEWS >> Dewey Ballantine
ISSUE 5.3
Reed Smith
Reed Smith boosts Beijing capacity Having seen a significant number of requests from clients for services in China in the areas of acquisitions, joint ventures and other types of investments, Reed Smith has Hugh Scrogin, grown its Beijing Reed Smith office by the addition of two partners and a team of lawyers from the former Dewey Ballantine’s Beijing office. Sharon Mann and Hugh Scrogin are the two new partners. Mann, a former senior director of the trade facilitation office at the US Embassy in Beijing, focuses her practice primarily on investment, capital markets and trade issues. Scrogin is a corporate partner focusing on investment, M&A, other corporate transactions and dispute resolution. Michael Dardzinski, joining the firm with a number of other lawyers and professionals, will serve as counsel and handles M&A, other transactions and dispute resolution. Paul Hastings
DLA Piper
DLA Piper takes on new partner in Shanghai Aiming to further develop its thriving European practice in Asia, DLA Piper has appointed Ghislain de Mareuil, former of counsel at Paul Hastings’ Shanghai office, to its partnership in Shanghai.
Mareuil specialises in advising European companies and organisations investing or operating in China. Increasingly, he has also been assisting PRC companies doing business in or with the European Union and French-speaking countries. Ghislain’s appointment brings a depth of experience advising clients in crossborder transactions with particular strengths in M&A, investment structuring and financing, restructuring, asset acquisition, disposal and divestiture. Prior to practising law, he worked as a management consultant with Accenture in France. Hogan & Hartson
Bryan Cave
Hogan & Hartson Hong Kong cohead runs to Bryan Cave Shortly after losing Hong Kong managing partner Mary Ellen Hutton to UK firm Withers, Bryan Cave has hired a senior partner from US rival Hogan & Hartson to maintain Mao Tong, its commitment to Bryan Cave the Hong Kong and Asia market. Mao Tong, the former co-managing partner of Hogan & Hartson’s Hong Kong office that Tong had helped the firm launch in September 2005, has joined Bryan Cave as a partner based in Hong Kong. His practice focuses on corporate and commercial transactions, cross-border M&A, private equity, securities and international joint ventures.
He has a JD from Columbia University Law School and a BA from Wesleyan University, and has spent most of his career practising law in China. Singapore
Shanghai
Holman Fenwick shuffles legal talent Holman Fenwick & Willan has moved Singapore partner Paul Aston up to Shanghai to take on the role of head of office in the budding Mainland Chinese financial hub. Paul Aston, Aston headed the Holman Fenwick & Willan firm’s Singapore office for many years before returning to London in 2000. After a four-and-a-half year spell there, he returned to Singapore. Aston has an extensive maritime, offshore and commodity practice across the AsiaPacific region, and has been charged with spearheading growth for the firm in China. In addition, Shanghai-based consultant to the firm, Peter Rees Smith, who formerly headed the firm’s Hong Kong office before retiring in 2003, has decided to reduce his role from a full-time commitment to a part-time role. Further West, the firm has also recruited commercial property specialist Christian Taylor, who has joined the firm’s partnership in Dubai. Melbourne
Beijing
Mallesons strengthens mainland presence Mallesons Stephen Jaques has transferred Melbourne partner David Olsson to its Beijing office to develop the firm’s financial services and corporate practice in China. Olsson is a capital markets and securities specialist with significant commercial experience. He has been one of the firm’s managing partners for several years and has also been the partner in charge of the firm’s Melbourne and Hong Kong offices. Before the transfer, Mallesons received a licence from the Ministry of Justice, allowing the firm to operate in Shanghai under its own name, instead of through an associated office David Olsson, acquired in the 2004 Kwok and Yih merger. Mallesons Stephen Jaques
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Second time around: OMEGA returns as law awards sponsor
O
MEGA may be the last letter in the Greek alphabet, but when it comes to watches, it is the first name in timekeeping excellence. Which is why it is appropriate that for the second year running the prestigious Swiss watchmaker has chosen to be the title sponsor of the ALB China Law Awards, where Carlos Cárdenas, vice president of OMEGA China, will present two of the night’s most prestigious awards – China Law Firm of the Year and International Law Firm of the Year. “OMEGA has long been synonymous with precision and excellence, which are exactly the sort of values we seek to recognise and reward at the ALB China Law Awards,” said Mike Shipley, managing director of Key Media, publisher of ALB magazine and organiser of the awards. “Everyone at Key Media and ALB China magazine are thrilled that OMEGA has once again chosen to be the Title Sponsor for this year's awards.” From its modest origins in the Swiss town of La Chaux-de-Fonds, Switzerland, in 1848 OMEGA has grown to be one of the world’s premier watchmakers with a brand that is instantly recognisable around the globe (OMEGA first set foot in the Chinese market it 1895, more than a century ago) as a mark of elegance, excellence and sophistication. Yet despite its long history, OMEGA is hardly hidebound by tradition. While its watches may bear one of the most venerable names in the industry, OMEGA is today riding the same wave of innovation that its founders caught 160 years ago. In 1969, OMEGA entered the history books when American astronaut “Buzz” Aldrin wore his OMEGA Speedmaster Professional Chronograph on the moon, and since then all subsequent manned NASA missions have used this wristwatch. Back then scientists were not sure how well the watch’s mechanical movements
would cope in the zero-gravity conditions of space, but the OMEGA Speedmaster was the only performance timepiece to survive a brutal testing regime involving exposure to extreme temperatures, vacuum, intense humidity, corrosion, shock, acceleration, pressure, vibration and noise. Over the decades OMEGA’s well-deserved reputation for excellence earned it a place on the playing fields as well, becoming the first watch company ever appointed Official Timekeeper for all Olympic Carlos Cárdenas, disciplines. OMEGA timepieces vice president of OMEGA China have featured at 22 Olympic Games – more than any other brand – and the company will be the official timekeeper at the upcoming Beijing Olympics as well as 2010’s Vancouver games and the Summer Olympics to be held in London in 2012. And in 1999 OMEGA once again made watchmaking history when it introduced the first mass-produced watch to incorporate a piece of technology known as a co-axial escapement. Thus while everyday consumers might not all the spycraft bells and whistles enjoyed by James Bond, who has worn OMEGA watches in every 007 film since 1995’s Goldeneye, they are still able to enjoy mechanisms within OMEGA watches suffer less friction and enjoy greater accuracy and life between services than their competitors. ALB
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PRIVATE EQUITY
ISSUE 5.3
PRIVATE EQUITY:
Onshore investment the silver lining Recent regulatory measures designed to curb investment inflows from offshore may have discouraged some bigger private equity deals, but PE lawyers say investors continue to find China attractive – as they return to the old days of direct onshore investment
B
ack in September 2006, several PRC regulatory agencies jointly issued M&A rules which amounted to a near prohibition on the method customarily used for offshore private equity (PE) investment into China. This ‘roundtrip’ method involves the creation of an offshore holding company in a jurisdiction such as the Cayman Islands, in which both foreign PE investors and Chinese owners would hold interests. The M&A rules were followed in May 2007 by Implementation Notice 106 from the State Administration of Foreign Exchange (SAFE), which outlined extensive new requirements for the registration of such transactions. This more restrictive approach seems to have stalled some PE deals, and majority acquisitions these days are rare. Yet these regulatory measures do not seem to
30
be having a major effect on the quantity of work for PE-related law practices. Conyers Dill & Pearman works on the offshore side of PE deals, assisting with the setup and organisation of offshore holding companies. “I think the number of transactions has come down a bit, and a lot of that’s due to the need for SAFE approvals,” says Christopher Bickley, partner with the firm’s Hong Kong office. “From what I’ve heard on the grapevine, it’s very difficult to get approval. Perhaps over the last three or four months we’ve seen a bit of a slowdown.” Even so, Bickley says that workflow in 2007 was “very strong”. International lawyers who are focused more on the China legal issues share a similar view. “There’s been slightly less deal flow,” says Basil Hwang, head of Dechert’s Asia PE practice based in the
firm’s Hong Kong office. “Investors have become more cautious, partly as a result of the credit crisis in the US and Europe; but we’re very busy nonetheless.” Hwang says there is still a lot of investment in “follow-on rounds” of companies that were restructured before the extra regulatory hurdles came in. Jeanette Chan, partner and head of the China practice group with Paul Weiss, likewise observes that those companies that completed their offshore restructuring before the regulations were introduced are very attractive, and provide ongoing work for firms. “There are still a lot of those companies around, so they’re very valuable as investment targets,” says Chan. “But you find more and more PE firms actually have come around to the idea of having to make a direct investment into China, and basically localising their investments.”
Back to the future: direct investment Major law firms are reminding their clients via their legal bulletins that in the early days of foreign investment into
PRIVATE EQUITY
www.asianlegalonline.com
CHINA: A PRIVATE EQUITY ‘HOT SPOT’ According to Asia PE Research, in 2007 China received US$9.5bn in private equity (PE) capital, second in Asia only to India. Two hundred and forty private equity deals were recorded during the 12-month period. Companies experiencing a growth stage attracted the lion’s share of PE capital, while commitments to buyouts slipped significantly from the year before. In a survey published by Private Equity News in the UK and sponsored by Simmons & Simmons, China has been tipped as one of the ‘hot spots’ for growth in 2008. According to the survey, 74% of PE professionals polled said that they intended to increase their activity in China. Allen Wong, China corporate partner at Simmons & Simmons, said: “Given the recent volatility of the IPO market, early market entrants who have built up significant portfolios may increasingly see trade and secondary sales as the most attractive exit options in the China region this year. Those with long-term commitments in China are beginning to accept onshore investment structures with exits through the developing Chinese stock market and trade or secondary sales.” Henry Ong, China corporate partner with Simmons & Simmons, commented: “Currently in China the market is still busy, with both PE and hedge fund money chasing after deals. Competition is intense and deals have to be signed up to quickly. There’s still more money looking for good investments than there are good investments.”
T
oday, the four largest PE funds in the world – Black Stone, Carlyle(Carlyle Group), KKR (Kohlberg Kravis Roberts) and Texas Pacific Group – have branches in China. And there are more PEs to come. DE Shaw Hedge Fund has announced that it will focus on investment in Asia (including India and China). Also, Al Salam BankBahrain announced in the second quarter of 2007 that its investment plan would target the Asia-Pacific Region in the areas of private equity and real estate, and that China would be on top of its list. To attract capital, the Value-added is a crucial factor. For PE, as the present low global interest rates continue, the excess liquidity of the capital market significantly increases investment returns, allowing companies to gain capital costs at relatively low levels. In fact, PE in China is experiencing a golden age. In Europe, the US and other developed countries, the target level of profitability for PE in M&A is estimated to be 7–8%, while in China the basic rate is 20–30%. PE through foreign investment has made it clear that China
is attracting investment projects and the profit level may be higher than that in the rest of the world. Henry Kravis, who heads one of the world’s largest PE’s initiatory partners, KKR, said that China occupy a very important position in the global economy, and the domestic industry is undergoing a very rapid transition that could create more and more investment opportunities for PE. Chinese PE appeared in the late 1980s, the prototype of the governmentled, mainly for high-tech enterprises’ financing risk investment funds. Since the 1990s, PE in China has still been informal but has been growing rapidly. From 2006 until now, PE in China has tended to be brisk. PE has presented unprecedented rapid development momentum, especially in 2007. PE in China has been behind the scenes in our capital market; therefore, no one has accurate data on its scope. Professionals in this industry estimate that now the scope of PE and of the Public Offering may be roughly the same as the capital market in China,
about ¥1 trillion, and still growing at a remarkable rate. Analysts believe that, sooner or later, the PE within Mainland will extend out of China and become more internationally oriented. This year the GEM (Growth Enterprise Market) may be launched by CSRC in China, which may increase withdrawal ways of PE. A large number of China innovative start-ups to be listed on the GEM, and to raise PE’s profits. And PE in China will enter a new era.
By Zhang, Yongqing Frank Zhang Senior Partner Dacheng Law Offices T:+8610 5813 7799 D:+8610 5813 7050 F:+8610 5813 7788 E-mail:yongqing.zhang@ dachengnet.com www.dachengnet.com
FIRM PROFILE
PE bloom in China
Zhang Yongqing
31
PRIVATE EQUITY
ISSUE 5.3
Thomas Britt, Debevoise & Plimpton
Richard Guo, Fangda Partners
China, multinational companies invested via onshore joint ventures with local Chinese partners using cooperative joint venture structures or equity joint venture structures. “A lot of those structures are now being revisited by a new audience – the PE community,” says Thomas M Britt III, partner with Debevoise & Plimpton in Hong Kong. “They’re looking at some of those structures as a means by which an investment can be made into China without having to go through the processes of registration with SAFE or approval of MOFCOM.” When it comes to making the return to onshore structures work for clients, Britt says one of the key issues for a PE firm considering a traditional FDI structure is ensuring that some of the same protections they had become accustomed to under offshore companies are still in
PRIVATE EQUITY BUYOUTS IN CHINA 2007
Target company
Target/seller financial advisor
Target legal advisor
Bidder company
Bidder financial advisor
Bidder legal advisor
Seller company
China National BlueStar (Group) Corporation (20% stake)
UBS
Skadden Arps Slate Meagher & Flom; Gide Loyrette Nouel
Blackstone Group Holdings LLC
Merrill Lynch
Mallesons Stephen Jaques; Simpson Thacher & Bartlett
China National Chemical Corporation
Hengda Real Estate Group (8% stake)
Deutsche Bank AG; Merrill Lynch; and Temasek Holdings
Value (US$m)
600
Freshfields; O'Melveny & Myers
400
317
China Eastern Airlines Corporation Ltd (8.27% stake)
Goldman Sachs
Baker & McKenzie
Lentor Investments Private Ltd; and Temasek Holdings Pte Ltd
UBS
Allen & Gledhill; Linklaters
Zhuhai Zhongfu Enterprise Company Ltd (29% stake)
Internal
Alpha Law Firm
CVC Capital Partners Limited
China Galaxy Securities; Citigroup Inc
Clifford Chance; Jun He Law Office
Zhonghai Zhongfu Group
214
Tianjin Pipe Investment
201
Tianjin Pipe (Group) Co. (undisclosed stake)
Bohai Industrial Investment Fund Management Company
Sunac China Holdings Ltd. (35% stake)
Lehman Brothers Private Equity
HNA Airport Holding (Group) Company Ltd (49% stake)
ARC Capital Holdings Limited; Asian Development Bank; Global Infrastructure Partners; and Pacific Alliance Asia Opportunity Fund Limited
Sun Securities Co Ltd (14.29% stake)
Bohai Industrial Investment Fund Management Company
Tianrui Group Cement Co Ltd (47.2% stake)
International Finance Corporation; and Kohlberg Kravis Roberts & Co
Shenyang Machine Tool Group Co.,Ltd (30% stake)
Jana Partners LLC
Cornerstone Partners B.V.
Shenyang Stateowned Assets Supervision and Administration Commission
132
Hony Capital Co Ltd
Piper Jaffray Asia Limited
State-owned Assets Supervision and Administration Commission
114
200
Credit Suisse; and Grant Thornton Corporate Finance
Hainan Airlines Company Limited; Hainan Meilan International Airport Company
200
Founder Securities Co
161
Paul Weiss Rifkind Wharton & Garrison
145
Shijiazhuang Pharmaceutical Group Co Ltd
Bank of China International Holdings Co. Ltd.
Union Life Insurance Co (19.9% stake)
Internal
Internal
Eurizon Financial Group
Internal
Ripa di Meana LC & Associati
104
Landwind Medical Holding Limited
KPMG Corp Fin
WongPartnership
Echo Investment Holdings; and Citigroup Venture Capital Equity Partners Ltd
DBS Bank Ltd
Allen & Gledhill; Conyers Dill & Pearman; Linklaters
102
m18.com (controlling stake)
Cont p34f
32
place. Examples of such protections are minority shareholder rights and liquidation preferences, ie who gets their money first if the company is dissolved. “People are utilising some of these structures and getting comfortable that there’s a sufficient level of protection on these issues within the current joint venture regime in China,” Britt says. “There was a bit of a hold-up in the months immediately following the adoption of the new rules, as people figured out how to navigate within the new regime; but I think 18 months after the fact, people have become a bit more comfortable.” Hwang of Dechert observes that there has been a lot of talk about the setting up of local renminbi PE funds, but this has yet to take off in a major way. One structure Hwang has been working with, but which is less commonly adopted for non-technology or media companies,
Sequoia Capital
Freshfields
Warburg Pincus
84
PRIVATE EQUITY
www.asianlegalonline.com
Chen & Co
W
ith the rising of private equity business in China, legal services in this area are also seeing a boost in recent years. Among all those pioneers that are engaged in legal business in private equity deals, Chen & Co. Law Firm is a leading runner. With the capacity of a full-service law firm, Chen & Co’s practice primarily focuses on capital markets - not only public equity and debt, but also the emerging areas of private equity, growth capital and venture capital. Of the 50 attorneys and associates in its Shanghai head office, around 40 have been participated in transactions related to capital markets. “Our business in private equity saw a leap forward in 2007, and is enjoying a very good beginning in the year 2008 with around 10 cases in process at the same time,” said Frank Chen, managing partner of Chen & Co. Many top-rate international private equity houses and funds have chosen Chen & Co to be their legal counsel, mainly because the firm is able to provide a “one stop” service. And by “one stop”, Chen means his firm would take into consideration the needs for future IPO when they provide tailored legal services to private equity investors. “Our lawyers are not only experts in private equity investment, but also familiar with M & A and IPO deals, as well as understand thoroughly the relevant regulations and businesses.” said Chen. “We would help design a forward-looking investing structure when we advise private equity clients, so that there won’t be any obstacles in the IPO of the invested companies in the future.” To illustrate that, Chen gives the example of Warburg Pincus’s investment into the Intime Department Store (Group) Company Limited in 2006, in which Chen & Co acted as the investor’s legal counsel. When advising on the transaction, the Chen & Co team took into consideration of the limits and restrictions set forth in “Circular 11” (Circular of the State Administration of Foreign Exchange Concerning Relevant Issues on Improving Foreign Exchange Administration for Merger and Acquisition with Foreign Investments), and “Circular 75” (Circular of the State Administration of Foreign Exchange on Relevant Issues concerning Foreign Exchange Administration of Financing and Return Investment Undertaken by Domestic Residents through Overseas SpecialPurpose Vehicles). The team helped the client adjust the deal structure of a US$32 million worth of investment, smoothing the way of future listing on the Hong Kong stock market. Later in 2007, Chen & Co acted as issuer’s PRC legal advisor in the Hong Kong IPO of Intime Department Store, the largest retailer in Zhejiang province. Through its Hong Kong debut, Intime successfully raised US$311m. Compared with international firms that have a long history of advising on capital markets deals in developed countries, Chen & Co’s competitive advantage lies in its familiarity with the domestic market. In addition, with many of its attorneys having the experience of working in international firms, the firm has in-depth understanding of the international private equity practices and legal service standards.
“Not every issue arising in the process of PE deals can have a definite answer in legal documents. To minimise the uncertainties, legal counsel needs to have right judgment on certain issues and effective communication with relevant government departments. The key leads to the best possible business solution is extensive experience and knowledge on Frank Chen the local market,” said Chen. After The Provisions on Foreign-funded Mergers and Acquisitions of Domestic Enterprises and a series of related rules were issued in 2006 and 2007, an increasing number of international PE firms are adopting onshore structure to their China deals. They are making direct investment into Chinese companies and exiting through listing on the A-share markets. “The change in the market requires our lawyers to fully understand the laws and regulations related to the A-share market,” said Chen. “It concerns a lot of issues that may result in totally different judgments, for example the “competition in the same business”, which is not a problem in the stock market in many other regions but a serious issue to be addressed when listing on the Chinese market.” The adjacency and quick adjustment to the legislative and regulatory changes have won Chen & Co many mandates from private equity clients. In 2006, Chen & Co hired by Zhejiang Supor (Supor), the largest listed kitchenware company in China, to advise on the acquisition of Supor by SEB Internationale S.A.S. (SEB) valued at US$300m. The deal is the first one in China involving the adoption of the combination of share transfer, rights issue and tender offer by a foreign purchaser to obtain control of a PRC listed company after the issue of the new Administration Procedures of the Takeover of Listed Companies in July 2006. It even triggered the first “anti-monopoly” examination in China in which Chen & Co. had been advising the parties and dealing with the Ministry of Commerce, and it lasted for about half a year before finally got approval. Although stringent restrictions on foreign capital are the main tune in recent times, Frank Chen is very confident and believes in the great potential of both international and domestic PE deals in China. “On one hand, the fast development of Chinese companies needs the financial support of equity investment, and on the other hand, a huge amount of international capital is seeking for an outlet,” said Chen. “Legal services in PE deals together with the subsequent IPO will become a very important area of practices for leading law firms in China,” said Chen.
FIRM PROFILE
shines in private equity
Frank Chen, Managing Partner, Chen & Co Law Firm Suite 1901 North Tower, Shanghai Stock Exchange Building, 528 Pu Dong South Road, Shanghai, 200120, P. R. C Pudong, Shanghai, 200120 Tel: (8621) 6881 5499 ext. 809 Fax: (8621) 6881 7393 / 6069 E-Mail: ymchen@chenandco.com Website: www.chenandco.com
33
PRIVATE EQUITY
ISSUE 5.3
f
From p32
PRIVATE EQUITY BUYOUTS IN CHINA 2007 (CONT)
Target company
Target/seller financial advisor
Yangzhou Chengde Steel Tube Co., Ltd. (49% stake)
Target legal advisor
Bidder company
Fangda Partners
The Carlyle Group LLC
Yangzhou Huiyin Household Appliance Company Limited (47% stake) Jinsheng International (38.79% stake)
ARC Capital Holdings Limited; and Pacific Alliance Group Ltd
Piper Jaffray Asia Limited
Yuema International Co. (Cayman) Ltd (Undisclosed)
Ambow Education Group (undisclosed stake)
Bidder financial advisor
Grant Thornton Corporate Finance; Internal
Bidder legal advisor
China Renaissance Partners
Goldman Sachs Strategic Investments (Asia) LLC; and Whitesun Equity Partners Avenue Capital Group; CID Equity Partners; Cisco Systems Inc; and Macquarie Group
Hubei Ready Medicine Co Ltd (wholesale and retail pharmaceutical) (33.33% stake)
Value (US$m)
Latham & Watkins
80
JunZeJun Law Offices; Squire, Sanders & Dempsey
77
Bain Capital LLC; CBL & Associates Properties Inc; and Goldbond Value Creation Fund LCS & Partners
Seller company
Herbert Smith, Gleiss Lutz, Stibbe
Jinsheng Group
63
Long Chen Paper Co Ltd
62
Macquarie Group Limited
54
Greater Pacific Capital
Freshfields Bruckhaus Deringer
AsiaVest Partners, TCW/YFY Ltd.; Fidelity Asia Ventures; InfoTech Ventures Co., Ltd.; MVC Corporation
Squire, Sanders & Dempsey
45
Dalipal Pipe Company (30%)
H&Q Asia Pacific
Paul Hastings
35
Sino-Ocean Real Estate Development Co Ltd
Standard Chartered Private Equity
35
ShangPharma Co Ltd (Undisclosed stake)
TPG LLP
30
Emeishan Special Cement Co Ltd (49% stake)
Olympus Capital Holdings Asia
iSoftStone Information Service Corporation (Minority Stake)
The Hong Kong and Shanghai Leather Corporation Limited (majority stake)
Bocom Capital Partners
Hogan & Hartson
SDM Corporate Finance N.V.
UniCredit China Capital
Freshfields Bruckhaus Deringer
17
Ashmore Investment Management
Huayu International Education Group (30% stake) PPStream (minority stake)
28
20
BlueRun Ventures; Draper Fisher Jurvetson; Draper Fisher Jurvetson DragonFund; and SB China Holdings Pte Ltd
UniCredit China Capital
50
25
Capital Today Ltd
Minrun Supermarket Chain Stores (32.55% stake)
TEKNOVA Medical Systems Limited (Controlling Stake)
Sichuan Golden Summit (Group) Joint-Stock Co.
BV Capital Partners
Shandong Rongqing Logistics Co Ltd (46.22% stake) Shanghai Synacast Media Tech Co Ltd (between 10% to 29% stake)
Hubei Ready Medicine Co Ltd
Shenzhen Agricultural Products Co Ltd; Shenzhen Fruits and Vegetables Trading Company
14
Hupomone Capital Partners Singapore Pte. Ltd; TDF Capital
14
SAIF Partners
10
Hogan & Hartson
Ceyuan Ventures; Qiming Ventures
Yingde Gases Investment Ltd
Internal
Hunan Qiyuan Law firm
Management Vehicle; and Baring Private Equity Partners
Not disclosed
DLA Piper
Runguang Hydraulics
Internal
Internal
Haldex AB
Internal
10 Weichai Power A-Shares
Rolmax Law Office
Source: mergermarket
is the China-China-Foreign (CCF) structure already common in the Chinese internet sector. “It’s been adopted by companies like Sina, Sohu and Shanda since about 1999– 2000, and more recently has been used by a number of companies in traditional industries as well,” Hwang says. “There’s a very long precedent for this kind of structure with internet companies. Those investors that have been in the technology space for a long time tend to be a bit more comfortable with it.” Although this approach gives effective
34
foreign control over domestic companies, Hwang believes that lack of action by Chinese regulators against internet companies, despite high profile listings over the last eight years, means that investor nervousness about this structure post-M&A rules could subside with time. “There’s always a risk that the Chinese authorities could clamp down on this structure, but by now probably too much water has gone under the bridge for the government to want to take action. It would just cause too much disruption to companies already listed overseas and
their investors,” he says. Chan of Paul Weiss says she believes that the PRC government continues to be engaged in a big push to encourage foreign direct investment. “Once the domestic stock exchanges and public market become more mature, you’ll see that foreign investors won’t even think about using offshore structures anyway,” she says. Chan cites her firm’s work on last year’s minority stake acquisition by PE giant Kohlberg Kravis Roberts (KKR) of Chinese cement producer Tianrui as an ex-
www.asianlegalonline.com
PRIVATE EQUITY
C
hina’s economic growth has been phenomenal and this growth has made the country a magnet for investors, with a soaring A-share market and great debuts of China concept shares in various listing platforms, the success of early foreign private equity (“PE”) funds with high returns attract an afflux of new funds into China scrambling for opportunities. However, facing a mounting pressure of RMB appreciation, the PRC government has adopted a clear policy shift to restrict inflow of foreign “hot money” into China, including money from foreign private equity funds. First, foreign private equity funds no longer enjoy the flexibility to make investment into an offshore special purpose vehicle (“SPV”) created by PRC founders of PRC portfolio companies, which in turn controls the PRC operations, and to achieve an exit through the SPV’s IPO at an offshore stock exchange by the SPV. An offshore SPV created by PRC founders after September 8, 2006 to control the PRC operations would not be able to get listed at an offshore stock exchange without securing approval from China Securities Regulatory Commission (“CSRC”). In practice, however, CSRC rarely approves offshore listing by an SPV incorporated after September 8, 2006, which makes an offshore exit virtually impossible to achieve. A PRC founder will need to change his or her nationality or adopt a nominee arrangement so as to avoid CSRC approval, which will significantly complicate an offshorestructured deal.
“Foreign private equity funds may find it difficult to achieve the same level of investment protection under an onshore investment structure that would otherwise be available under an offshore structure.” Second, foreign private equity funds may find it difficult to achieve the same level of investment protection under an onshore investment structure that would otherwise be available under an offshore structure. Under PRC law, a direct investment by a foreign private equity fund into a PRC portfolio company will typically need to secure approval from the Ministry of Commerce (“MOFCOM”) or its local counterparts, which, however, rarely support(s) the concepts of performance adjustment, redemption rights, liquidation preference and convertible note. The approval may take much longer if the portfolio company is a joint stock company. Foreign private equity funds may face more frustration when trying to secure approval from CSRC for an investment into
a listed PRC portfolio company. In one instance, CSRC rejected a proposed investment by Goldman Sachs in a listed PRC electronic appliance producer after several month review, by citing the lower purchase price vis-à-vis the market price of the shares upon the approval. Moreover, foreign private equity funds would need to tackle the different listing rules for a PRC listing, including a longer lockup period (typically three years). Jeremy Dai Third, PRC portfolio companies often time find it much easier to raise funds from domestic PRC private equity funds. Typically, an investment by a PRC private equity fund into a PRC portfolio company would not trigger any governmental approval. Moreover, there is sufficient RMB money in the market that is ready to invest. The PRC Partnership Enterprise Law came into effect on June 1, 2007, which paved the way for local PRC institutional investors (including without limitation, securities brokerage firms, commercial banks and insurance companies) to become limited partners in domestic PRC private equity funds. Recent notable examples include the formation of the governmentbacked Bohai Industry Investment Fund and China-Singapore HighTech Industrial Investment Fund. Moreover, domestic private equity funds have strong local expertise and resource and have been growing very rapidly in recent years. Finally, the recent abolishment of preferential tax treatment to companies with foreign investment removed one of the major incentives for PRC portfolio companies to prefer foreign private equity money to domestic private equity funds. In summary, foreign private equity funds will face much more fierce competition from domestic PRC private equity funds in the days to come. Foreign private equity firms have been seeking better investment structure for their China strategy. For instance, some have chosen to develop a parerral funds in and outside of China. Some established foreign-invested venture capital enterprises by securing MOFCOM approval. Others are lobbying very hard with MOFCOM and CSRC to ease the restriction on the listing of SPVs incorporated after September 8, 2006. To tackle all the new challenges and better protect their investment interest, it would be critical for foreign private equity funds to work closely with counsels to navigate the various investment options for transactions in China.
FIRM PROFILE
New Challenges for Foreign Private Equity Funds in China
JEREMY DAI, Partner ZHONG LUN LAW FIRM 200 Yin Cheng Road Central, 11th Floor, Bank of China Tower Pudong, Shanghai, 200120 Tel: 86 21 5037 2668 Fax: 86 21 5037 2678 E-Mail: jeremydai@zhonglun.com Website: www.zhonglun.com
35
PRIVATE EQUITY ample of the type of onshore deal that will now become more common.
Domestic firms rising to dominance Top domestic law firms are increasingly competing with international fi rms on the same PE turf. Zhong Lun has reported a strong growth in PE practice over the past few years. In 2007, the firm successfully represented international venture capital and PE houses, such as AIG, Bear Stearns, Deutsche Bank, GE, IDG, Merrill Lynch, Morgan Stanley, RBS, SIG, Softbank and Starr, in dozens of crossborder transactions. Shanghai-based PE partner Dai Zhiwen says he has witnessed the winds of change in the market. “The growing interest international PE houses have in China has resulted in strong deal growth and revenue growth in our firm,” says Dai. “Compared to a few years ago, the scope of their investment has been expanded from mainly TMT to a wide range of traditional sectors, including retail, real estate, education and manufacture.” In the buoyant market, some domestic
ISSUE 5.3
fi rms have acquired increasingly high levels of experience and competence in advising PE investment. “[In the past] international f irms would typically be responsible for the documentation of the transaction, and the role of Chinese counsel was just to help with regulatory issues and due diligence,” says Richard Guo, partner with PRC law fi rm Fangda Partners in Beijing. “Nowadays, more and more PRC fi rms are capable of doing documentation to international standards. “With more PE deals moving onshore, PRC practitioners who understand … international norms and local practice and regulatory regimes are getting the momentum,” he says. As for whether more regulatory changes are on the way, nobody really knows. According to Guo, in 2008 MOFCOM might open the door to approvals of offshore “roundtrip” investments. “But,” he adds, “it’s just a rumour – it could go the other way.” So while the policy landscape is a shifting one, the enormous opportunities continue to attract. ALB
Private Equity in China
FIRM PROFILE
Private equity funds will embrace a new threshold in China.
36
The Seventeenth National Congress of the Communist Party requires China’s full involvement in economic globalization, to make China much more market oriented and international. PE will be of great importance in economic resources allocation, which is positive and promising for China in the future. In the fields of the restructuring of SOEs, corporate financing, infrastructure development and renewable energy sources, PE will witness tremendous opportunities in the foreseeable future. The reason is that the development of China’s socialist market economy requires the full involvement of PE. In the last two years, overseas private equity investors have dominated the investment market in China. However, with the new Partnership Enterprise Law, domestic private equity funds will expand quickly, and diversified joint venture private equity funds will emerge. With the emerging of PE funds, problems such as shortage of talent and profitable investment projects will become evident. Consequently, abundant capital for private equity funds has been stockpiled due to a lack of profitable investment
projects, and many promising companies have limited access to investment. Therefore, the specialist lawyers who are most proficient in the rules of capital operation will increasingly become more important. Based on the recent practice experience of Dacheng Law Offices, lawyers are expected to know more about PE, especially its characteristics, to make full use of client network, to make recommendations of promising enterprises, and to help these enterprises to formulate the legal frameworks, corporate governance and management systems favoured by PE, which will greatly increase the corporate value and make it easier to obtain funding. Without legal regulations concerning PE, PE investors must be well prepared, in order to face legal risks. Meanwhile, the policy environment, the exit strategy and to what extent the overseas PE funds are familiar with the local business environment are overarching concerns; therefore, lawyers’ professional knowledge and practice experience play an important role. On the other side, lawyers are supposed to search the existing legal framework to help PE funds design deal structures in compliance with PRC laws and international rules, and explore creative moulds and strategy. The
development of PE can be enhanced, the legal service market can be explored and the policy conducive to PE funds can be stipulated by close cooperation with the government As a whole, Chinese lawyers are provided with a much wider legal service market through the active and prompt development of PE in China. Each phase in the industrial chain of PE provides tremendous business opportunities for Chinese lawyers, including establishing PE funds, determining investment direction and targets, implementing due diligence, negotiating, eliminating barriers in the approval process, organising and integrating target companies, designing deal structures, and exiting. By Xiao Jinquan Dacheng Law Offices Senior Partner Xiao Jinquan Director of the Commerce and Corporate Committee of ACLA E-mail: jinquan.xiao@ dachengnet.com Office Tel: 8610-58137313 Mobile: 86-13910161818
Xiao Jinquan
www.asianlegalonline.com
PRIVATE EQUITY
37
Presents
China Law Date: Friday 25 April 2008 Venue: The Westin Shanghai Time: 7:00pm Dress code: Black tie
ALB China Law Awards recognises the excellence of China’s lawyers as well as the top deals and dealmakers of 2007 across a range of practice areas. The evening is an extravagant black tie gala event and the best networking opportunity of the year, bringing together legal professionals from Shanghai, Beijing, Guangzhou, Hong Kong and other mainland cities. Guests will be treated to a welcome cocktail reception, sumptuous gourmet dinner complemented with free flowing drinks, the best live entertainment and the chance to celebrate the very best that the legal industry has to offer.
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Presents
China Law Date: Tuesday 25 April 2008 Venue: The Westin Shanghai Time: 7:00pm Dress code: Black tie
ALB China Law Awards recognises the excellence of China’s lawyers as well as the top deals and dealmakers of 2007 across a range of practice areas. The evening is an extravagant black tie gala event and the best networking opportunity of the year, bringing together legal professionals from Shanghai, Beijing, Guangzhou, Hong Kong and other mainland cities. Guests will be treated to a welcome cocktail reception, sumptuous gourmet dinner complemented with free flowing drinks, the best live entertainment and the chance to celebrate the very best that the legal industry has to offer.
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China Law Awards 2008 Book your table now! In order to be there at the fabulous ous Westin Shanghai Hotel on 25 April, ril, book a table for the ALB China Law aw Awards 2008 by contacting Jenny Chan on +852 2815 5988 or e-mail jenny@kmimail.com
ALB Law Awards Series
ALB China is proud to announce the finalists for this year’s China Law Awards, which will be held at the Westin Shanghai Hotel on 25 April
T
his year, 2008, is a year to celebrate achievement. In Beijing and other cities across China later this year, the world will marvel as some of the greatest athletes alive gather to compete, with the best of the best recognised and rewarded for their years of training and effort. Meanwhile in Shanghai, the cream of the crop of the legal profession will gather at the Westin Hotel on 25 April to recognise the very best in their own business at the annual ALB China Law Awards. While the work these lawyers do may occur in conference rooms and courtrooms rather than swimming pools and playing fields, the diligence and dedication of attorneys practising in the Chinese legal arena is testament to the power of the human mind to forge progress, resolve disputes, protect legitimate claims, and advance the interests of both commercial interests and society at large. This year we will honour work in 36 categories. Reflecting the growing economic activity taking place throughout China, this year we will also be honouring a number of firms from cities around the country. But what makes these awards truly special is that they are by lawyers, for lawyers. The awards would not be possible without
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the help of literally hundreds of legal and industry experts whose collective efforts allow the profession to speak with a single voice of recognition and congratulation. Even if the magazine’s events and research teams facilitate tonight’s awards, it would all be impossible without the help of the literally hundreds of legal and industry professionals whose contributions tonight give the profession a single voice. For these efforts, ALB China would like to offer a profound “Thank you”. The finalists in each deal category have been assessed against a range of criteria: deal value, complexity, number of parties involved, innovative deal structure, timeframe for completion and significance to the market. Finalists in the firm categories meanwhile have been recognised for their outstanding client service as well as their ability to combine rigorous analysis with astute judgment to give clients a competitive edge. The following pages are the result of ALB China research. The omission of a firm from a transaction does not mean that the firm did not play a role on the transaction. ALB China would like to congratulate all of the finalists for the 2008 ALB China Law Awards and we look forward to seeing you at the Westin Shanghai Hotel on 25 April.
The ALB China Law Awards 2008 is the first in a series of award ceremonies hosted by ALB around the Asia-Pacific region that seek to reward the largest, most innovative and complex legal work carried out by lawyers during 2007 ALB Law Awards for the Australasian region will be held in Sydney on 22 May, for the Japan region in Tokyo on 30 May, for the SE Asia region in Singapore on 20 June, and for the NE Asia region in Hong Kong on 19 September.
Assessment of deals Short-listed transactions must have reached financial close during the 2007 calendar year to be eligible for consideration. While many transactions will involve multiple legal jurisdictions, each deal will be allocated to a specific ALB event – governed by where the majority of the legal work was completed. The ALB editorial and management team have defined four criteria for judging the overall excellence of any given deal. These are as follows: Size: the financial value of the deal and the quantity of legal work involved Complexity: the degree to which advanced legal and financial techniques and structures have been applied to the deal Breadth: the degree to which the deal spanned jurisdictions, practice areas, parties and industries Innovation: the degree to which the deal involved groundbreaking, original legal techniques and structures
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LAW FIRMS OF THE YEAR – PAGE 41 CATEGORY Banking
LAW AWARD CATEGORIES
Dispute Resolution Insolvency & Restructuring Insurance
\ Banking Law Firm of the Year FINALISTS
Intellectual Property Managing Partner
West China Firm Northeast China Firm
Global
Shipping Tax & Trusts Guangzhou Law Firm
Why: A regular finalist, in 2007 Llinks continued to guide multinational clients through the complexities of the Chinese legal system. Among the major deals Llinks participated in in the banking sector were Intesa Sanpaolo’s equity investment in Qingdao City Commercial Bank and HSBC China Dragon Fund’s Global Offering and HKEx Listing.
Commerce & Finance Why: One of the leading private law firms in China and again a nominee in this category, Commerce & Finance Law Office’s Banking and Finance team continues to enjoy a strong reputation for its work representing foreign lenders and Chinese borrowers in various banking transactions.
Offshore
Llinks
Dispute Resolution Law Firm of the Year FINALISTS AllBright Why: A previous winner in the category and a perennial finalist, AllBright continues to enjoy a strong reputation for its innovative approach to dispute resolution matters.
Jiangsu Firm
Why: Again a nominee in this category, banking & finance remains a traditional strength of Global’s highly-regarded practice.
Tianjin Firm
Haiwen & Partners
Shenzhen Firm
Why: Again a nominee in this category, Haiwen received a number of peer nominations, testifying to the strength of their banking & finance attorneys who are regularly retained by major PRC and international financial organisations to handle syndicated loan transactions, regulatory and compliance matters and new project developments.
Why: Also a perennial finalist in the category, Jingtian & Gongcheng’s Litigation & Arbitration Department’s six partners and more than thirty associates are well-regarded by their peers in the industry. Over 2007, Jingtian & Gongcheng concluded more than 80 civil actions and approximately 40 commercial arbitrations for major clients including Hainan Airlines.
Jingtian & Gongcheng
Jun He
Investment Bank
Why: A newcomer to the category, Jingtian & Gongcheng enjoys a strong and growing reputation amongst its peers for its work in the banking arena.
Banking & Financial Services
Jun He
Why: A previous winner and perennial finalist, Jun He’s dispute resolution team served as adviser on a number of litigations and arbitrations through 2007 and continues to represent Danone as one of its lead counsels in its ongoing domestic and international disputes with Wahaha.
Zhejiang Firm
Hong Kong Law Firm, PRC Office Beijing Law Firm Shanghai Law Firm International Law Firm China Law Firm IN-HOUSE TEAMS OF THE YEAR – PAGE 46 CATEGORY
Foreign Company Chinese Company China In-House Team DEALS OF THE YEAR – PAGE 48 CATEGORY Real Estate & Construction Energy & Resources IT / Telecommunications Project Finance Debt Market Equity Market M&A International Dealmaker China Dealmaker China Deal of the Year Note: Firms listed under each category are in no particular order
Why: The year 2007 was another strong one for this firm’s well-regarded banking practice, which weathered the various storms of reforms, restructurings and openings to foreign investors not only intact but improved. All tolled, the firm advised major banks on dozens of financing deals with a combined value of over US$30bn, including acquisition finance, project finance, structured finance, assets finance and trade finance.
King & Wood Why: Last year’s winner, King & Wood’s banking practice continues to be a core part of its business. In 2007 the firm acted as counsel or advisor on a number of major projects, and King & Wood has acted for more than two-thirds of all foreign banks who have applied or are preparing to apply for local incorporation of their PRC subsidiary banks in preparation for entering into fully-opened domestic banking market and offering fullrang RMB services to domestic clients.
Jingtian & Gongcheng
King & Wood Why: Last year’s winner, King and Wood continues to enjoy an excellent reputation for dispute resolution work and has proven that it can more than hold its own against the best firms from around the globe. In one instance, with a team of less than 10 attorneys and at a significantly lower cost than the likes of international firms based in Paris and Los Angeles, King & Wood enabled its client to withstand and defend a sustained onslaught of multi-jurisdictional litigation until its opponent initiated discussions of a settlement.
Zhong Lun Why: A finalist for the third time in this category, Zhong Lun’s reputation as a player in this complex field continues to grow. The year 2007 saw the firm represent a number of major Chinese and international firms before mainland courts, including Bank of China
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(Hong Kong), a subsidiary field of China Oil, Intel, Westinghouse Electric and Electrolux.
Fangda Partners Why: A newcomer to the category this year, this firm enjoys a growing reputation for its strength in dispute resolution work. The past year saw the firm participate in a number of RMB100m+ arbitrations, successfully represent several high-profile domestic and international players in dispute, arbitration and enforcement matters, and receive the best possible ranking by a panel of judges and specialists in the selection of bankruptcy liquidators conducted by the Shanghai High Court.
Zhenghan Why: A newcomer to the category, this firm has developed a strong reputation for its work in the banking sector, and saw its case participation rate nearly double from 302 in 2006 to 575 last year.
Boss & Young Why: This category-newcomer has helped a number of Chinese firms engage in large-scale restructuring, and points to the challenges created by China’s WTO accession as a source of opportunities.
Dacheng Why: A newcomer to the category, this firm enjoys a growing reputation for its work in insurance should be “insolvency” matters.
Jincheng & Tongda Why: Enjoying a growing reputation in the liquidation sector in 2007, Jincheng & Tongda was engaged by the PRC’s Securities Investor Protection Fund as liquidators of Centergate Securities Co Ltd.
Insurance Law Firm of the Year
Shenda
FINALISTS
Why: This firm enjoys a growing reputation for its strength in dispute resolution work.
AllBright
Grant Thornton Award Insolvency & Restructuring Law Firm of the Year FINALISTS Jun He Why: A previous winner and regular nominee, Jun He continues to enjoy a strong reputation in this area. Headed by Mr Lei Wu, Jun He’s bankruptcy and restructuring team worked on a number of important projects over 2007 on behalf of governmental authorities and foreign and PRC parties. The firm also became one of the qualified administrators for enterprise bankruptcy cases in Beijing and Shanghai, a further testament to their strong reputation in the field.
Why: A previous winner, AllBright Law Offices was once again very highly recommended by peers and clients for its work in 2007.
Grandall Legal Group Why: One of the largest insurance firms in the country, the pro-active approach of Grandall attorneys continues to allow it to win and keep major clients including PICC. Huatai Insurance, Taikang Life Insurance and Zurich Insurance.
King & Wood Why: Having won this award in the past, King & Wood remains in the top tier of practitioners dealing with insurance matters in China. The team was involved with a number of IPOs over 2007, including China Life Insurance’s A Share listing on the Shanghai Stock Exchange as well as Ping An and China Pacific Insurance’s IPOs.
King & Wood
Wang Jing & Co
Why: Last year’s winner, King & Wood continues to be home to one of the strongest such practices in China. In 2007 the firm was involved in a number of high-profile insolvencies, restructuring and reorganisations.
Why: Last year’s winner, Wang Jing continues to be a leader in the insurance category, enjoying the largest dedicated insurance practice group – focusing exclusively on property, liability, and life insurance litigation and arbitration – on the mainland. Wang Jing’s reputation is further bolstered by its representation of all members of the International Group of P&I Clubs, which insure 90 per cent of the world’s oceangoing tonnage.
Zhong Lun Why: A second-year finalist, this firm’s reputation continued to grow in 2007 with its Beijing, Shanghai and Shenzhen offices handling a number of complex transactions, earning it a coveted top three ranking in both the High Court of Beijing and the Intermediary Court of Shenzhen’s administrator’s list.
King & Capital Why: A new entrant to the category, this firm enjoys a growing reputation for its work in this often complex practice area.
Guantao Why: Founded in 1994, this newcomer to the category services an impressive array of domestic and international clients.
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Kai-Rong Why: A newcomer to the category, this firm enjoys a growing reputation for its work in insurance matters.
G & W Law Firm Why: Also a newcomer to the category, this firm likewise enjoys a growing reputation for its work in insurance matters.
Intellectual Property Law Firm of the Year FINALISTS CCPIT Patent and Trademark Law Office Why: A previous winner and perennial finalist, CCPIT is one of the most venerable names in the Chinese legal industry. In 2007 CCPIT began its 50th year of intellectual property services, and over the decades has been a leader in developing China’s intellectual property regime.
King & Wood Why: King & Wood, which has won this award twice in the past, continues to enjoy an excellent reputation as an intellectual property law firm of the highest order. The firm has lately made a move towards more transactional work in the area, though 2007 saw King & Wood successfully represent a number of high-profile international clients in disputes over domain names, patents and other intellectual property.
Liu Shen & Associates Why: Liu Shen is the first foreign-related nongovernment operated patent and trademark agency approved by the Chinese government, and the firm is known for its strong in-house technical knowledge.
Lifang & Partners Why: It’s been a busy 2007 for Lifang, which spent the year representing a number of domestic and multinational corporations including Epson, Danone, Yahoo, Yamaha, and Google in intellectual property and technology matters before Chinese courts. The addition of new senior partners Mr Cheng Yongshun and Dr. Wang Jiabin further bolster this firm, while its involvement in governmental IPR policy making points to Lifang’s growing influence.
Chang Tsi & Partners Why: Awards newcomer Chang Tsi is emerging as a large full-service law firm with a core interest in intellectual property matters. The IP area, led by firm founding partner Spring Chang, enjoys a growing reputation for its handling of matters across trademark, patent, enforcement and litigation/arbitration.
Zhongzi Why: With its large intellectual property practice, Zhongzi enjoys a growing reputation for its work across all aspects of this dynamic field.
Gieves & Hawkes Award Managing Partner of the Year FINALISTS Gao Yang – Fangda Partners Why: Last year’s winner, Gao Yang continues to lead his firm from strength to strength.
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Wang Junfeng – King & Wood Why: A finalist in the category for the second year running, Wang Junfeng has continued to impress following the departure of Handel Lee in 2005. Working hard to build a first-tier global law firm in Chian, Mr Wang is one of the top deal makers of the firm. He continues to be a visionary leader in the domestic and international legal market.
Xiao Wei – Jun He Why: Again a finalist in this prestigious category, Xiao Wei continues to enjoy a strong reputation among his peers. As Jun He’s managing partner, Xiao has proved himself an innovator both internally and externally. His roles with government, professional and social committees testify to Xiao’s influence and respect within legal and policy-making circles.
consolidated the gains of recent mergers in Jersey and the Cayman Islands and in Hong Kong scored a big win with the lateral hire of partner Owen Jones, one of the city’s leading structured and asset finance lawyers.
Conyers Dill & Pearman Why: A perennial finalist and last year’s winner, in 2007 this firm worked on 48 out of a total of 83 listings on the HKSE, including such prominent PRC groups as Country Garden, Stella International Group, Vinda International and SOHO China. They also acted in the public offerings of 11 PRC operations on the NASDAQ and New York Stock Exchanges.
Maples & Calder
Why: The fact that he has been nominated as both Managing Partner of the Year and Dealmaker of the Year speaks volumes about this Zhong Lun Law Firm founder and pioneer of real estate practice among Chinese law firms.
Why: Once again a finalist in the Offshore category, this Cayman Islands-based giant continues to grow thanks to ever-increasing levels of activity in the investment and private equity markets, as well as the sustained growth in structured products across the region. Major deals this year included 3Com’s H3C Tech leveraged financing.
Wang Zhongde – Dacheng
Walkers
Why: 2007 has proven to be an extremely busy year for Wang Zhongde, as his firm opened five new offices across China, boosted the revenues by 109% and attracted a large number of new lawyers and partners. However, consolidation doesn’t seem to be on Wang’s mind just yet, as he speculates that Dacheng’s exponential growth is to continue in the coming years.
Why: Again a finalist in this category, Walkers has seen another year of consistent growth. Recent deals include participation in Project Dynasty, which closed as the first-ever cross border CMBS transaction for real estate assets in China, as well as a number of other REIT, ADR, and IPO deals. The elevation of Denise Wong to Partner in the Hong Kong office and the addition of four more associates testifies to the onward march of Walkers.
Zhang Xuebing – Zhong Lun
Tian Yu – Jincheng & Tongda Why: Headed by international trade law specialist Tian Yu, Jincheng & Tongda has posted an incredible growth rate of 98.9% for 2007, marking the firm’s best year so far. Moreover, the firm achieved the result without adding a new office and with only a 10% increase in the number of fee-earners.
Shipping Law Firm of the Year FINALISTS
Cui Liguo – Guantao Law Firm
Global
Why: Under the leadership of Cui Liguo, Guantao has introduced “harmonious” values to its core culture and value. The harmonious and understated atmosphere within the firm has ensured its success in the profession and gained recognitions among clients and peers.
Why: This major player in the shipping category and last year’s winner continued to break new ground in this category this year.
Chen Wen – Zhonglun W & D
Hai Tong & Partners
Why: The head of Zhonglun W & D saw the firm achieving its biggest growth year last year, with the 2007 revenue increased by more than 35% compared to the previous year. Chen has also led his firm to be the first Chinese firm to open an office in London.
Why: Hai Tong remains a boutique operation with a tremendous reputation.
H & Y Law Firm Why: Once again a finalist, H & Y continues to be highly regarded by peers and clients alike.
Henry & Co. Why: Perennially well-regarded boutique firm Henry & Co enjoyed another strong 2007.
Rolmax
further enhanced its competitive edge in all aspects of maritime law.
Wang Jing & Co Why: Once again a finalist in this category, Wang Jing was involved in 65 per cent of all major shipping cases in China over 2007 involving foreign elements and/or claims of US$1m or more. This firm is among the biggest shipping-focused firms in the country, representing P&I Clubs which ensure 90 per cent of the world’s ocean-going tonnage.
HSBC Private Bank Global Wealth Solutions Award Tax & Trust Law Firm of the Year FINALISTS Lehman Lee & Xu Why: Perpetual winner Lehman Lee & Xu – with an uninterrupted run of trophies in this category from 2004 to 2007 – continues to remain at the leading edge of tax law on the mainland.
Shanghai Co-Effort Why: The firm’s tax practice is headed by managing partner Yan Xizhong. The firm excels in dealing with complicated financial and taxation issues arises from foreign investments and commercial transactions.
JunZeJun Why: Led by Mr Li Rongfa, JunZeJun is enjoying a growing reputation for its work in tax and trusts matters and 2007 saw it work on a number of interesting projects involving local and overseas companies.
Commerce & Finance Why: Since its founding in 1992, Commerce & Finance has seen its reputation grow in all commercial areas, including the dynamic world of taxes and trusts.
Grandall Legal Group Why: Again a finalist in the category, Grandall is both one of the largest firms in the country and one of the most recommended. The past year saw the firm involved in a number of headline-making deals and cases, including the notorious “Daqing Lianyi False Statement Case”. A number of honours from Shanghai judicial and governmental agencies rounded out the year for the firm.
Jun He Why: Led by David Liu, Jun He has enjoyed a strong year in the tax & trusts arena, with work on such transactions as a postM&A restructuring of a major US software developer’s PRC subsidiaries.
Why: This Shanghai-based firm remains on the cutting edge of maritime law, proudly boasting that most of its members are professors on the faculty of law at the renowned Shanghai Maritime University, giving clients a practical and theoretical edge.
Guangzhou Law Firm of the Year
Appleby
Sloma & Co
Guangda Partners
Why: Again a category finalist, Appleby saw another year of growth in 2007 as it
Why: By merging with Shanghai firm Siway & Seaway last September, Sloma & Co has
Why: 2007 was another strong year for previous winner Guangda, which joined the
Offshore Law Firm of the Year FINALISTS
FINALISTS
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Sino-Global Legal Alliance as a founding member last year. New clients combined with developing talent mean that Guangda increased turnover by over 27 per cent, while Chief Partner Mr Xue Yunhua enjoys a strong reputation in the field.
C & I Law Firm Why: C & I law firm has one of the strongest non-contentious practices in Guangdong, and has an excellent track record advising Japanese companies and investors in Southern China. The firm has also won the bid to act for Guangdong Guangxin International Group in the establishment of the Imo-Guangdong Free Trade Zone in Nigeria in Africa.
Kingson Law Firm Why: This firm enjoys a growing reputation as one of the strongest firms in its region.
Wang Jing & Co Why: Once again a category finalist, Wang Jing continued it’s role as the only Guangzhouheadquartered firm with offices in 8 cities with foreign clients representing over 200 companies from around the globe including Fortune 500 multinationals, listed companies, banks, insurance companies and niche leaders. This firm recently established its own IP agency and FDI group to meet surging demand in these areas, has just named 5 new partners and opened a new branch office in Shenzhen.
Trust Law Firm Why: In less than 10 years, Trust Law Firm has grown to become one of the most competent corporate and commercial law firms in South China.
Guangxin Why: Once again a finalist in this category, Guangxin continues to exhibit impressive growth. Over 2007 Guangxin dealt with a number of important deals and cases, and successfully competed against other local firms to provide comprehensive legal services to the 16th Asian Games Organising Committee.
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international expansion, undertaking strategic alliances with firms overseas to improve its capabilities and enhance its competitiveness.
Zhonghao Why: Zhonghao is well-known for its experience working with major institutions, educational bodies, government agencies and commercial organisations.
FINALISTS Chongqing Exceedon & Partners Why: With a wide-ranging practice, Chongqing Exceedon continues to build a reputation as a player in this growing region.
Chongqing Solton & Partners Why: In an increasingly dynamic region of the country, Solton’s brand is bolstered not just by its 20 full-time, Chongqing-based attorneys, but by its long history of dedication to serving clients in China’s west.
Tahota Why: Since its establishment in 2000 Tahota has quickly developed a reputation as a firm to be reckoned with. With branches in Beijing and Shenzhen, Tahota now has its sights set on
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Zhejiang Firm of the Year FINALISTS
Gaoyang Why: This firm is enjoying a growing reputation for its work in western China.
Chongqing Yuanye Why: Yuanye enjoys a strong reputation for its work across all aspects of commercial law, including real estate, finance, securitised lending and intellectual property rights.
Sichuan Dingli Why: This firm enjoys a strong reputation for its work in trade, investment, finance and real estate matters.
Zhejiang T&C Why: From its birth in 1986 as a small local practice, today T&C enjoys a strong reputation both regionally and nationally for its transactional and litigation work.
Zhejiang Zhehang Why: The firm provides services for over 200 companies, industries and government offices in the Yangtze River Delta region. It has established cooperative relationship with a number of foreign law firms in countries such as Hong Kong, the UK, and the US.
Zhejiang Liuhe
Northeast China Firm of the Year FINALISTS Shandong Qindao Why: With over 50 years in the business, Qindao’s long and venerable history ensures its place on any list of top law firms in this region. As a member of the Grand Compass Law Alliance, it is able to provide clients with nationwide legal services through other members within the network.
Wang Wu Yang & Ma Why: Led by managing partner Wang Li, this firm has been taking advantage of increased economic activity in the region by handling an ever-growing number of inbound and outbound legal services.
Heng Xin Why: With its team of lawyers spread across a range of disciplines, Heng Xin is a serious contender as a top-flight law firm in the region.
Fada
West China Firm of the Year
partners. The year saw the development of the firm’s practice in M&A, oversea listing and foreign investment legal services.
Why: Fada Law Firm has an outstanding reputation for service to the community as well as that of maintaining the highest professional ethics having been awarded the Model Law Firm for both Liaoning province and Dalian Municipality in 1997 and 1998 consecutively.
DeHeng Why: During the last six years, Deheng has been the top firm by revenue in north-east China, a 20% increase by partner headcount year-on-year. The annual turnover rate is over 20% and the non-litigation practice is growing by over 10% year-on-year. Deheng enjoyed an excellent 2007, adding many new multinational corporations to its expanding clientele and seeing turnover increased by more than 30% on figures for 2006, over a quarter of the practices is oversea-related. During the year, Deheng added 8 new
Why: With 29 partners and more than 80 lawyers, the full service firm practice with a solid focus on corporate and commercial matters. The firm grows alongside Zhejiang entrepreneurs’ rapidly expanding business across China and investment overseas.
Zhejiang Wulian Why: Zhejiang Wulian is one of the largest and most well-known law firms in Zhejiang Province with a core practice focused on corporate law, real estate, intellectual property, banking and securities, international trade, medical disputes, criminal litigation and arbitration.
High Mark Why: One of the first Hangzhou firms to adopt an entrepreneurial management style, Highmark has delivered strong and steady growth in staffing, fees and profitability since it was established in 2002. With a team of talented lawyers, many of whom have an international background, Highmark is widely recognised by local clients as being a genuine alternative to the top-tier firms. The past year has seen the firm rising to prominence in areas of private equity, IP, overseas listings and international trade.
Jiangsu Firm of the Year FINALISTS Fangben Why: With its reputation for team work, responsiveness, business sense and quality control, Suzhou headquartered Fangben has won high praise from its domestic and international clients. Its Shanghai office has also experienced strong growth in recent years.
Jiangsu Zhibang Why: This firm enjoys a strong reputation among its peers and clients for its work in transactional and other areas.
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C&T Partners Why: This firm enjoys a strong reputation among its peers and clients for its work in transactional and other areas.
edge in providing legal solutions to their commercial transactions.
Guanghe
Why: One of the oldest law firms in Nanjing, this firm enjoys a strong reputation for servicing an impressive roster of international clients including Motorola, Sharp, Jujitsu, Shell, Philips, Sheering, Ericsson and LG.
Why: Guanghe Law Firm is one of the largest law firms in China with highly recognised expertise in a broad range of practice areas including securities, corporate and finance, litigation/arbitration, commercial transactions, construction and real estate, labor and employment.
Nanjing Liuhong
China Commercial (Huashang) Law Co.
Why: This firm enjoys a strong reputation among its peers and clients for its work in transactional and other areas.
Why: This firm enjoys a strong reputation both regionally and across the nation for its work in its capital markets, banking and finance, real estate and intellectual property practices.
Jiangsu FD Yongheng
Jin Ding Partners PRC Lawyers Why: Jin Ding is headquartered in China’s ancient city of Nanjing. Following the motto of “sincere cooperation and diligent service”, Jin Ding Partners’ staff of highly qualified professionals, has become a large and well-recognised law firm only a few years after its establishment.
Tianjin Firm of the Year FINALISTS
SD & Partners Why: This firm is reputed to be one of the most influential professional service brands in Shenzhen. Aiming to provide more accessible and responsive services to clients in South China region, the firm is opening a branch office in Guangzhou.
Hong Kong Firm of the Year PRC Office FINALISTS
Winners (Jinnuo) Why: Winners has long been recognised as a local market leader. In 2007, the firm was admitted to the membership of Law Associated Worldwide and stepped up another level to expand its legal business worldwide.
Yaoda Why: This firm enjoys a strong reputation among its peers and clients for its work.
Join & High Why: Primarily focusing on providing local legal services and local knowledge to facilitate foreign investment, Join & High, with three offices in Tianjin, enjoys a reputation as one of the leading professional law firms in China’s new engine of economic growth.
Mingzhou Why: Mingzhou law firm enjoys a strong reputation in the fields of finance law, real estate law, company law, infrastructure investment, intellectual property, international trade and maritime law.
Deacons Why: A perennial finalist and previous winner in this category, Deacons continues to enjoy an excellent reputation on the mainland. Deacons’s China head, Franki Cheung, has over the course of 2007 continued to take his firm from strength to strength.
Mayer Brown JSM Why: With 300 lawyers across 7 Asian business centres, including 3 in the mainland, the Mayer Brown JSM partnership remains a dominant force in China legal service market.
Vivien Chan & Co Why: Once again a finalist, this firm enjoys a growing reputation and profile, with head Vivien Chan consistently recognised as one of Asia’s leading legal lights.
Woo Kwan Lee & Lo Why: A finalist for the second year running, this firm’s Beijing office enjoys strong relationships with clients across mainland China.
Shenzhen Firm of the Year
Beijing Firm of the Year
FINALISTS
FINALISTS
Sincere Partners
Jun He
Why: This firm enjoyed a very successful 2007 with excellent results in both their litigation and non-litigation practices and as such its reputation among its peers continues to grow.
Why: A previous winner and a regular finalist, Jun He’s Beijing headquarters worked with a solid roster of clients including Morgan Stanley, Merrill Lynch, JP Morgan, Motorola, Jabil Circuit, Telstra, Microsoft, Nokia, Nissan, Heitz, Dow Jones, Mitsubishi, Sony, Nippon Steel, KPMG
Jing Tian Why: Since its inception, it has rendered highly professional legal services to domestic and foreign clients and has achieved leading
Consulting/ BearingPoint, BHP, Dell, LG, Northwest Airlines, Bausch & Lamb, and Schering-Plough. Representative deals included Belle International Holding Limited’s Listing at the Hong Kong Main Board, Anta Sports Products Limited’s Listing at the Hong Kong Main Board, Sichuan Xinhua Winshare Chainstore Co., Ltd./H shares IPO, Noah Education Holdings Limited’s Listing on the New York Stock Exchange, and Western Mining Company Limited’s Listing at the Shanghai Stock Exchange
King & Wood Why: Last year’s winner, King & Wood worked on a number of important deals over 2007, including financing for the Fujian Refining and Ethylene Project, the RMB2.46-equivalent dual-currency loan facilities to Tianrui Cement, and a number of IPOs for major Chinese insurance groups.
Zhong Lun Why: Zhong Lun continues to show strength in the Beijing market, and 2007 was a heavy growth year which saw revenue jump 63 per cent, with a total of 81 partners now working for the firm. The firm enjoys a growing reputation across real estate, capital market, M&A, securitisation, bankruptcy and insolvency law.
Jingtian & Gongcheng Why: One of the leading lights of the Chinese legal firmament, this firm enjoys a robust reputation across a wide range of practice areas.
Global Why: Founded in 1984 under the auspices of the China Council for the Promotion of International Trade, Global was the first law firm established following the PRC’s implementation of reform and opening to the outside world. Global was converted into a private partnership in early 2001, and today enjoys a broad and deep reputation for its work across the international banking and finance, project finance, foreign direct investment, corporate finance, aircraft and vessel finance, international arbitration, antidumping, asset securitization, structured finance, maritime and shipping, and litigation arenas.
Jincheng & Tongda Why: This firm enjoyed a fruitful 2007 across a variety of areas, including trade finance, foreign direct investment, mergers and acquisitions, real estate and liquidations.
Dacheng Why: More than doubling its revenues over 2007, while opening offices in five regional centres, Dacheng is solidifying its place in the Beijing legal establishment.
Zhonglun W& D Why: Zhonglun W&D’s practice focuses on corporate affairs and securities, finance, real estate and construction, intellectual property and IT, international investment and international trade, mainland-Taiwan
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matters, Western region development, tax, environmental protection, litigation and arbitration and energy law, and it enjoys a strong reputation across all these fields.
Porsche Centre Shanghai Award Shanghai Law Firm of the Year FINALISTS
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2007’s league tables for M&A work (US$47.2bn completed and announced) and was involved in a slew of headline deals for the year.
Morrison & Foerster Why: One of the few international firms operating in China with firms in Hong Kong, Beijing and Shanghai, Morrison & Foerster is known for its “Silicon Valley”-style IP and technology-driven practice.
AllBright
Shearman & Sterling
Why: AllBright Law Offices was once again very highly recommended by peers and clients for its work in 2007.
Why: Any rumours about this firm’s downsizing its Asian operations were put to bed this year with the opening of a second office on the mainland in Shanghai. The previous finalist firm now enjoys one of the largest Mandarin-speaking teams of New York-qualified lawyers in Greater China, and collectively its mainland and Hong Kong offices acted on over a dozen IPOs with a total value of more than US$4.3bn and took leading roles in some of the largest and most complex projects of the year across a number of sectors.
Fangda Partners Why: Last year’s winner, Fangda Partners once again enjoyed a strong 2007, acting for such clients as the Carlyle Group, Singapore Airlines, and Blackstone.
Grandall Legal Group Why: Once again a category finalist, Grandall enjoyed another strong growth year in 2007. Representative deals include the domestic A-share listing of Zhejiang Baoxinia Garment Co and Shanghai Hi-Tech Control System Co, M&A work with Focus Media and Cgen Media, and a corporate bond project involving Shanghai International Airport.
Jin Mao Why: This firm enjoys a consistently strong reputation among Shanghai-based firms.
Llinks Why: Llinks continued to grow its profile among Shanghai firms over 2007, working on such deals as SAIC’s acquisition of Nanjing Automobile (Group) Corporation, SEB Internationale’s Strategic Investment in Shenzhen-listed Zhejiang Supor, and HSBC China Dragon Fund’s Global Offering and HKEx Listing.
J & F PRC Lawyers Why: J & F PRC Lawyers is a 20-year-old fullservice Shanghai firm which today employs over 60 lawyers.
OMEGA Award International Law Firm of the Year FINALISTS Clifford Chance Why: A perennial finalist, Clifford Chance enjoyed another good year. New appointment Bruce Schulberg and the promotion of Tim Wang in Beijing and Steven Cao in Shanghai are evidence of a broader trend of hires and promotions which serve as evidence of the success of CC’s China practice.
Sullivan & Cromwell
Linklaters Why: The largest of international firms in China, last year’s winner in this category topped
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Banking & Financial Services In-House Team of the Year FINALISTS Bank of China Why: Coming off 2006’s IPO, Bank of China’s in-house team had their work cut out for them with the global credit crunch. Despite such exposure, the bank enjoyed 31 per cent profit growth for 2007.
Bank of Communications (BoCom) Why: With the opening of China’s banking system to foreign competition, BoCom as one of the country’s largest lenders remains highly recommended.
Why: Once again a finalist, Sullivan & Cromwell was again a player in many of the year’s biggest headline transactions, among them China Investment Corporation’s purchase of around US$5bn of preferred equity units of Morgan Stanley, China Merchant Bank’s receipt of approval to open a branch in New York City, Albaba.com’s US$1.7bn IPO, Barclay PLC’s sale of a US$3bn stake to China Development Bank, and Eastman Kodak’s US$2.255bn sale of its health segment business to Onex Healthcare Holdings, Inc.
ICBC
Allen & Overy
Standard Chartered
Why: With over 100 internationally-qualified lawyers, Allen & Overy’s China offices offer comprehensive legal services in the China market. Much of the multi-jurisdictional work performed by lawyers in each of these offices covers cross-border deals such as listing work for Chinese clients as well as servicing international clients with businesses in China.
Why: In its short history – its first branch and five sub-branches opened as recently as 2006 – Standard Chartered Bank has quickly made a name for itself. The winner of last year’s award, 2007 has seen the bank’s meteoric growth continue. Its permanent staff has doubled to more than 4,300 employees, the bank’s network of ATMs has grown to 104 in 13 cities, and its Legal and Compliance division has grown right along with it, to a staff total of 55.
Lovells Why: Another strong expansion year has seen China Law Awards newcomer Lovells go from strength to strength. Work on groundbreaking deals, including the US$1.9bn Country Garden IPO and ALSTOM’s acquisition of 51% of Wuhan Boiler, has been complemented by heavy-hitting lateral hires and the development of specialist competition law capability in the firm’s Shanghai office. The firm has also placed itself at the centre of the pioneering SGLA (Sino Global Legal Alliance) association of firms. This firm is one to watch.
Freshfields Bruckhaus Deringer Why: Once again a category finalist, Freshfields enjoyed a strong 2007, notching up 14 IPOs across Asia raising funds totalling over US$17bn.
IN-HOUSE AWARD CATEGORIES
OMEGA Award China Law Firm of the Year FINALISTS To be announced on the evening
Why: Two major overseas M&A transactions done by ICBC in 2007 kept the company’s in-house legal and compliance department extremely busy. Mr Zhang Wei, the General Manager of legal and compliance department, has led his in-house team, working closely with external counsel, and ensured the resounding success of ICBC’s acquisition of Indonesian PT Bank Halim and ICBC’s recent US$5.5bn investment in South Africa’s Standard Bank.
China Asset Management Co Why: A newcomer to the category this year, this bank’s reputation continues to grow along with its assets under management, currently around 250 billion yuan (US$35bn).
China Merchants Bank Why: Headquarted in Shenzhen and duel listed in Hong Kong and China, China Merchants Bank is the first share-holding commercial bank wholly owned by corporate legal entities in China. The bank’s in-house legal practice maintains high international standards. The remarkable hard-working and competent in-house legal department is managed by Mr Zhu Liming.
China Mingsheng Banking Corp Why: A landmark deal the bank completed in 2007 was the acquision of 20% share
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in UCBH – the biggest bank serving the Chinese community in the US. The in-house legal department has been involved in the transaction, marking the first strategic investment in a US bank by a Chinese financial institution. The legal and compliance department was managed by Liu Chaoyang up until the end of 2007 when He Li took over the general manager role from Liu.
serious number of nominations within the local legal community.
Morgan Stanley Why: A big year for this venerable bank with its participation in a number of deals including Alibaba.com, 2007 also saw the bank enter a joint venture with China Fortune in a deal that could see it – if approved – take a controlling interest in that company.
China Construction Bank
UBS
Why: In the wake of 2005’s record-breaking IPO and subsequent stake acquisition by Bank of America, CCB has gone from strength to strength, enjoying a 62 per cent profit increase in 2007 against 2006.
Why: Last year’s winner, UBS had another strong year in 2007. Finishing number one in the China IPO league table by deal revenue, UBS market share for China capital market transactions increased from 2.5 per cent to 10.2 per cent off the back of some 47 completed equity transactions (compared to 20 in 2006). This meteoric growth was due in large part to UBS’s role in helping various state-owned companies with a diverse range of capital raisings (including Sinotrans’s US$1.48bn IPO and Petrochina’s A-share IPO, valued at US$8.96bn).
Investment Banking In-House Team of the Year FINALISTS China International Capital Corporation Why: A major player in the Chinese underwriting market, 2007 saw CICC involved in a number of major deals including an overseas IPO for Fosun International, an A-share offering for China COSCO, and an A+H share IPO for China Life which raised nearly US$6bn.
Credit Suisse Why: Despite taking a hit from its exposure to the subprime crisis, Credit Suisse was a player in a number of headline deals and formed a partnership with Beijing-based Founder Group. 2008 should see a further set of opportunities for Credit Suisse’s legal team as the firm has recently announced plans to launch a brokerage joint venture in China.
Deutsche Bank Why: In 2007 Deutsche Bank’s Legal team delivered solutions to their clients across the bank in its rapidly growing investment banking, commercial, private and consumer banking activities. They also provided legal counsel and deliverables central to the bank’s strategic investment in China, notably in 2007 the process of achieving PRC local incorporation, which became effective on January 2, 2008. With years of experience dealing in complex, cross-border structured finance, capital markets and derivatives products, the China Legal team is also well balanced with graduates from leading PRC law schools. Together, they possess a comprehensive and solid knowledge base to identify and resolve the most complex legal issues associated with the provision of innovative investment banking products, as these products are introduced to the PRC market place.
China Development Bank Why: Led by Wu Aimin, CDB’s in-house legal team verifies relevant disclosure and issues PRC legal opinion if required. When it comes to bond offerings, however, the in-house team interfaces with the Treasury Department. Led by deputy general manager Liang Hui Jiang, the Treasury Department runs the bond offerings. In 2007, CDB acquired stakes in Barclays for over US$3bn, which was the largest outbound cross-border M&A by a Chinese company at the time. In 2007, CDB also closed China’s first Renminbi-denominated retail bond offering in Hong Kong, comprising RMB2.5bn institutional and RMB2.5bn retail bond issues. The deal represents inaugural RMB bond issue by Mainland financial institution in Hong Kong Special Administrative Region. CDB’s in-house legal team – led by Wu Aimin – reviewed disclosure and issued legal opinion, but company bond offerings run by Treasury Department led by Liang Hui Jiang.
JP Morgan Why: Besides working on a number of deals in 2007, JP Morgan’s China legal team enjoyed another win when local securities regulators approved the bank’s plan to set up a joint venture to provide futures execution and clearing in China.
LexisNexis Award Foreign Company In-House Team of the Year FINALISTS
Goldman Sachs
Honeywell
Why: While suffering regulatory setbacks in the Chinese market, Goldman’s sizable legal department saw it’s reputation among its peers go from strength to strength, with a
Why: With a long-standing investment and involvement in China, today Honeywell’s legal team is routinely noted as one of the strongest among foreign companies in the country. The
company has a presence in 12 cities across the country through its subsidiaries, branch offices and research centers and a staff population of more than 4,000 strong.
IBM Why: IBM’s in-house team is highly respected within the Chinese corporate community.
Microsoft Why: The software giant’s China legal team had a busy 2007, working closely with government on issues relating to internet businesses, IP protection and corporate citizenship.
Nokia Why: Nokia’s China-based lawyers would have had a busy 2007, negotiating deals with China’s Postel to move US$2.5bn worth of handsets and opening a flagship store in Shanghai.
Bayer Why: The defence of intellectual property and patent rights continues to be a key issue for the Bayer China legal team.
ExxonMobil Why: The joint venture between Sinopec, the Fujian regional government, ExxonMobil and Saudi Aramco represents the first fully integrated joint foreign-Chinese project involving fuel and chemical marketing.
Chinese Company In-House Team of the Year FINALISTS BaoSteel Why: BaoSteel’s legal team enjoys a strong reputation for its work across a number of projects for 2007.
Haier Group Why: Haier Group is among the pioneers in Chinese companies’ outbound investment and recognised as one of China’s top global brands. The group manufactures a wide range of household electrical appliances being sold in more than 100 countries. Haier’s international expansion started a few years ago, and will continue its emergence in the international scene. Haier’s in-house legal department, led by Qingdao based General Counsel Su Xiaoxi, is growing in line with the group’s business both in sophistication and size. It assists Haier Group in ventures at home and abroad. Main tasks include conducting due diligence, drafting contracts, negotiating and establishing new companies and branches. The in-house department has worked with a large number of international and national firms, and values the role of external counsel. The in-house team never stops improving internal practice standards and management, and broadening and deepening their expertise.
Huawei Technologies Why: A busy year on the IP front saw Huawei’s legal team garner a number of nominations from its peers.
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Lenovo Why: Lenovo’s Greater China in-house legal department is led by Zhang Zikuan, Executive Director, Assistant General Counsel and General Counsel of Greater China. The team currently consists of 23 lawyers and is experiencing steady growth. The team has been advising Lenovo on Olympic sponsorship-related legal issues since the company became the first Chinese company to join the Olympic Partner (TOP) program since 2005. As Lenovo is expanding its footprint in US and Europe, as well as venturing into emerging markets such as India and Mexico, the Greater China in-house team has worked closely with Lenovo’s legal teams in other jurisdictions to assist the multinational company achieving its global ambition.
Sinopec Why: Sinopec has been a pioneer in establishing the general counsel system in state-owned companies. Comprehensive procedures and systematic of legal functions have been set up to enhance the entire group’s corporate governance and risk management. Sinopec headquarters’ inhouse legal department is headed by Shao Jingyang and reporting to the Deputy General Manager and general counsel of Sinopec Group Zhang Yaochang. Shao and his team provide renowned safeguarding and supervising functions to the group’s evergrowing domestic and intentional business. The in-house team has played an integrated role in Sinopec’s rapid emergence as a competitive multinational company.
Ping An Insurance Group Why: With a legal team over 100 individuals strong, Ping An’s in-house lawyers remained busy throughout 2007 – especially with a number of acquisitions including a major deal with ICBC.
PICC Property and Casualty Company Limited Why: This Chinese insurer had a strong 2007 with profits up 120%, and with a domestic listing in the offing its legal team will continue to have its work cut out for it.
CNOOC Why: Along with its usual work, during 2007, the CNOOC Legal Department led the negotiations of 4 new PSCs in offshore China and 2 amendments to existing PSCs, as well as supervising the performance of 40 existing PSCs respectively with 27 foreign oil companies.
MWE China Law Offices Award China In-House Team of the Year FINALISTS To be announced on the evening
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DEAL AWARD CATEGORIES Knight Frank Award Real Estate & Construction Deal of the Year FINALISTS SOHO IPO Firms: Zhong Lun, Haiwen & Partners, Freshfields, Conyers Dill & Pearman, Commerce & Finance, Skadden.
Banks: Goldman Sachs LLC, HSBC, UBS AG Why: The tranche for the IPO of this Beijingbased property developer was 169 times over-subscribed and triggered a claw-back. To add further complexity, the deal involved the negotiation of complex property laws and regulations in PRC and HK.
CHINA CENTRAL PROPERTIES AIM LISTING Firms: Zhong Lun, King & Wood, Linklaters, Halliwells, Mayer Brown JSM, DLA Piper, Dickson Cruickshank Banks: Merrill Lynch, Cazenove Asia Why: This deal involved the simultaneous listing of China Central Properties on the Alternative Investment Market on the London stock exchange and the global issuance of convertible bonds. The capital raised will enable the completion of several development and construction projects.
COUNTRY GARDEN IPO Firms: Jingtian & Gongcheng, Woo Kwan Lee & Lo, Lu Lai & Li, Simpson Thacher & Bartlett, Conyers Dill & Pearman, Commerce & Finance, Lovells Banks: Morgan Stanley, UBS Why: The IPO placed 2.4 billion new shares and raised gross proceeds of US$1.65bn which will become US$1.9bn following full exercise of over-allotment option. As at the date of the issue the company had 27 property projects at various stages of development and one of largest land banks among developers in PRC.
BEIJING GUOHUA REAL ESTATE STAKE ACQUISITION Firms: Mallesons Stephen Jaques, Jun He Banks: Deutsche Bank Why: Beijing Guohua Real Estate is an SOE property developer set up by Guohua Electric Power, a wholly owned subsidiary of the Shenhua Group; the mainland’s largest coal producer. The deal was negotiated amidst a regulatory environment which sought to tighten restrictions concerning foreign investment in real estate.
ranking between the Strategic Investors and the Lenders. A well-designed inter-creditor arrangement was developed to balance the interest of the Strategic Investors and the Lenders, share security between the two groups of investors, and prioritise the payment to different investor groups in solvency and insolvency scenarios. The borrower’s inability to provide direct PRC asset mortgage to offshore investors also entails creative security and cash management structure to support the highyield debt investment.
Energy & Resources Deal of the Year FINALISTS SINOPEC – CRE Firms: Herbert Smith, Richards Butler Why: China Petroleum & Chemical Corporation (Sinopec) acquired petroleum wholesale, transport, storage and retail facilities and LPG distribution outlets from China Resources Enterprise (CRE). Following acquisition, Sinopec becomes one of top four petrol retailers in Hong Kong, competing with Exxon Mobil, Shell and Chevron.
CHINA PETROCHEMICAL OIL REFINERY AND ASSETS ACQUISITION Firms: Guantao, Herbert Smith Banks: China International Capital Corporation Limited Why: The acquisition, which involved the purchase of assets from SOE and collective enterprises, meant that complex foreign ownership regulations needed to be negotiated. Further complexity was added by the fact that the assets were situated in a number of different jurisdictions.
DONGFANG ELECTRIC COMPANY (DEC) REORGANISATION AND LISTING Firms: King & Wood, Norton Rose Banks: Citic Securities, HSBC Why: The most complicated reorganisation and listing case which includes the share trading reform of an A-share listed company, the A+H share listed company’s acquisition of A-share listed company together with other assets of DEC Group, DEC Group’s acquisition of other shares of the A-share listed company by share-swap tender offer, DEC Group’s transfer of the shares it acquired during the share-swap tender offer. Approvals were required from the SASAC, CSRC, SFC, Shanghai Stock Exchange, China Securities Depository and Clearing Corporation and the HK Stock Exchange.
EVERGRANDE EQUITY/DEBT FINANCING Firms: Jun He, Paul Hastings, O’Melveny & Myers, Richards Butler, Commerce & Finance Banks: Credit Suisse, Deutsche Bank, Merrill Lynch Why: This transaction involved establishing a complex security sharing and payment
Copitrak Systems (Asia) Ltd Award IT/Telco Deal of the Year FINALISTS 3COM H3C TECH LEVERAGED FINANCING
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Firms: Commerce & Finance, Freshfields, Maples & Calder, Jun He, Slaughter & May, Latham & Watkins, Ogier Banks: Goldman Sachs Why: 3Com Corporation closed leveraged financing for its acquisition from an affiliate of Huawei Technologies of its remaining 49% stake in H3C Technologies. Formerly known as Huawei-3Com, H3C Technologies is 3Com’s PRC joint venture with Huawei Technologies.
ALIBABA.COM IPO Firms: Fangda Partners, Freshfields, Sullivan & Cromwell, Maples & Calder, Haiwen & Partners, Slaughter & May, Simpson Thacher & Bartlett Banks: Goldman Sachs, Morgan Stanley & Deutsche Bank Why: Alibaba.com Limited, the leading B2B e-commerce company in the PRC, completed its initial public offering, raising gross proceeds of approximately US$1.7bn. This is the second largest IPO ever by an Internet company worldwide. The IPO consisted of a Rule 144A offering in the US, a Regulation S offering outside the US and a public offering and listing in Hong Kong. Unlike most other initial public offerings by Internet companies in China, this was a truly novel transaction as it was the first IPO and Hong Kong listing by a B2B e-commerce company in China, and many of the legal, regulatory, disclosure and other issues that arose in the course of the transaction were questions of first impression.
GIANT IPO Firms: Grandall, O’Melveny & Myers, Conyers Dill & Pearman, Commerce & Finance, Lee & Li, Shearman & Sterling, Patterson Belknap Webb & Taylor LLP Banks: Merrill Lynch, Pierce Fenner & Smith, UBS Why: The offering consisted of approximately 65.8 million ADSs at US$15.50 per share. Approximately 52.5 million ADSs were offered by Giant. The selling shareholder offered about 13.3 million ADSs, including 8.6 million sold following the underwriters’ exercise, in full, of their over-allotment option. This deal spanned many jurisdictions such as PRC, HK, Taiwan, BVI & Cayman Islands and the US.
CHINA MOBILE (CMCC) ACQUISITION OF PAKTEL Firms: Linklaters, Shearman & Sterling, Hafeez Pirzada & Associates, Kabraji & Talibuddin Why: This was an extremely significant deal for CMCC, involving their first M&A investment in a non-Greater China country. The complex transaction involved seeking approvals from the PRC National Development and Reform Commission, the PRC Ministry of Commerce and the PRC State Administration of Foreign Exchange.
Project Finance Deal of the Year FINALISTS TIANJIN SHIBEI – VEOLIA WATER Firms: Beijing Concord Law Firm, Gide Loyrette Nouel Why: The project was not only subject to international tender but also involved the an equity purchase agreement as part of the joint venture contract. The location of this deal is particularly noteworthy as Tianjin is a rapidly growing and important city in Northern China which has recently been chosen by the central government to become PRC’s third economic powerhouse after Shenzhen in south China’s Guangdong Province and the Pudong New Area in Shanghai.
FUJIAN REFINING AND ETHYLENE PROJECT Firms: King & Wood, Latham & Watkins, Haiwen & Partners, Shearman & Sterling, White & Case Why: This is the largest world scale integrated petroleum refining and petrochemical project in China. The total investment cost of the project is approximately RMB38.4bn (approx. US$5bn) with construction targeted for completion in 2009. The financing is provided by twelve major Chinese banks comprising of RMB/USD term loan facilities, RMB/USD revolving loan facilities, and RMB/USD standby debt facilities.
KEPCO-SHAANXI ACQUISITION Firms: Millbank, Shearman & Sterling, Mayer Brown JSM Banks: Export-Import Bank of Korea, Woori Bank, HSBC Why: This deal represents the largest ever private portfolio acquisition of power projects in China. KEPCO acquired a 34% interest in a US$2bn portfolio of coal and power assets in Shaanxi province, involving power and mine projects under construction, in planning and in operation. As a result of this deal KEPCO acquired twelve power plants and nine coal assets on the mainland.
NANJING ETHYLENE COMPLEX REFINANCING Firms: Shearman & Sterling, Jun He Why: This deal is one of the largest RMB take-out refinancings in China to date. The financing for the project, which was provided by Chinese banks and consisted of dollar and RMB dominated tranches, enabled the refinancing of an integrated petrochemical project in Luhe, Nanjing and Jiangsu provinces.
SINOPEC FINANCING BLOCK OF 18 Firms: Jones Day Why: The transaction was the first overseas upstream project financing by any Chinese oil and gas company and PRC banks. It was also the first green field project financing in Angola and the largest green field upstream financing in Africa to date. The First largescale single-traunch, equal terms co-lending by international and PRC banks achieved
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within a condensed turnaround time of four months after the launch of RFPs.
Debt Market Deal of the Year FINALISTS HOPSON DEVELOPMENT Firms: Haiwen & Partners, Linklaters, Conyers Dill & Pearman, Drake & Co., Freshfields Banks: Credit Suisse Why: The deal involved Hopson Development selling renminbi-denominated but US-dollar-settled convertible bonds (CBs) to finance existing and new projects as well as potential acquisitions of new land. This complex deal was uniquely structured this way for accounting reasons and is the first time that a company has issued CBs in renminbi to be settled in another currency.
CHINA DEVELOPMENT BANK CB ISSUE Firms: Sidley Austin, Haiwen & Partners, Clifford Chance Banks: Bank of China, HSBC Why: The China Development Bank international bond issue comprised RMB2.5bn institutional and RMB2.5bn retail bond issues. The deal represents the inaugural RMB bond issue by a mainland financial institution in Hong Kong.
SINOPEC CB ISSUE Firms: Herbert Smith, Haiwen & Partners, Skadden, Commerce & Finance, Freshfields Banks: Goldman Sachs, Lehman Brothers Why: The deal was the region’s largest convertible bond (CB) offering for six years, (excluding Japan) and the largest CB by a PRC issuer ever.
NEO-CHINA REG S/114A BOND OFFERING Firms: Mallesons Stephen Jaques, Latham & Watkins, Clifford Chance, Richards Butler Banks: BOCI Asia Limited, Deutsche Bank Securities Inc. Why: This was the first time that a bond with warrants structure had been applied in the Asian public bond market. The innovative offering involved a convergence of private and public market funding structures and its success paves the way for similar offerings in the future. The deal was upsized to US$400m from an initial US$350m despite volatile market conditions. Investors received 66,000 detachable five year warrants for every US$100,000 worth of bonds purchased. Each warrant entitles the holder to buy one NeoChina share at a 20 per cent premium to the company’s 15-day volume weighted average share price. The warrants were immediately detachable from the notes and both the notes and the warrants are being cleared through DTC.
Road King Infrastrucure FRNs Firms: Global Law Office, Commerce & Finance
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Richards Butler, Sidley Austin, Conyers Dill & Pearman, Linklaters Why: Deal inolved Road King Infrastructure entering into a S&P agreement to acquire a new residential property site in Dongcheng District of Beijing, with a total gross floor area of around 59,000 sqm. Total consideration and the estimated cost of relocation is about RMB500 million.Upon the completion of the acquisition, Road King has four property development projects in Beijing, contributing an aggregate gross floor area of around 560,000 sqm.
Equity Market Deal of the Year FINALISTS ALIBABA.COM IPO Firms: Fangda Partners, Freshfields, Sullivan & Cromwell, Maples & Calder, Haiwen & Partners, Slaughter & May, Simpson Thacher & Bartlett Banks: Goldman Sachs, Morgan Stanley, Deutsche Bank Why: Alibaba.com Limited, the leading B2B e-commerce company in the PRC, completed its initial public offering, raising gross proceeds of approximately US$1.7bn. This is the second largest IPO ever by an Internet company worldwide. The IPO consisted of a Rule 144A offering in the US, a Regulation S offering outside the US and a public offering and listing in Hong Kong. Unlike most other initial public offerings by Internet companies in China, this was a truly novel transaction as it was the first IPO and Hong Kong listing by a B2B e-commerce company in China, and many of the legal, regulatory, disclosure and other issues that arose in the course of the transaction were questions of first impression.
BOQI TOKYO LISTING Firms: Mori Hamada & Matsumoto, Guantao Law Firm, Anderson Mori & Tomotsune, Zhong Lun
Banks: Daiwa Securities SMBC Why: This deal sees Boqi become only the second PRC firm to list in Japan and the first PRC firm to list on the first section of the main board of the TSE, and first non-Japanese company to list on main board of TSE.
CITIC BANK IPO Firms: King & Wood, Skadden, Commerce & Finance, Freshfields Banks: Citigroup, HSBC, Lehman Brothers, Merrill Lynch Why: This deal was about much more than only the second A then H listing by a bank in the PRC. It also involved negotiating issues without the guidance of precedents include the simultaneous purchase by BBVA of the shares of CITIC Bank and CIFH, an agreement between CITIC Bank and BBVA on stock option arrangement, and the need for advice on how to avoid competition between CITIC Bank and CITIC Ka Wah Bank, a subsidiary of CIFH.
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CHINA AGRI-INDUSTRIES HOLDINGS INTRODUCTORY LISTING Firms: King & Wood, Herbert Smith, Commerce & Finance, Freshfields Banks: Goldman Sachs Why: This deal was the first listing of a RedChip company by way of spinning-off and involved approvals from SASAC, CSRC and the state council. The differing legal requirements of mainland PRC and HK were difficulties of the first instance.
PETROCHINA COMPANY A SHARE LISTING Firms: King & Wood, Shearman & Sterling, Jingtian & Gongcheng, Freshfields Banks: Citic Securities Limited, UBS Securities, China International Capital Corporation Why: The proceeds netted from the A share issue mean it is the largest ever A-share IPO and the largest IPO of 2007 in terms of proceeds. Some of the difficulties associated with such a large transaction are different disclosure requirements of A and H shares in different jurisdictions and the wide scope of due diligence.
COSCO A SHARE OFFER AND PLACEMENT Firms: Commerce & Finance, Fangda Partners Banks: China International Capital Corporation Why: This was the first time that a placing was approved to take place shortly after the A share public offering. It was also the first time a placing involving a material acquisition by a listed company was approved by CSRC’s Material Restructuring Committee after the hearing procedure.
M&A Deal of the Year FINALISTS ICBC & BANK HALIM Firms: Baker & McKenzie (incl Indonesian member Hadiputranto Hadinoto & Partners), Makes & Partners Banks: China International Capital Corporation, Bank Halim Indonesia Why: The deal represents the first time that ICBC has entered the overseas market via acquisition and its first takeover of foreign bank outside Greater China China’s. ICBC has option to purchase the remaining 10% in Bank Halim in three years although the deal itself remains subject to approval by the China Banking Regulatory Commission and Indonesia’s central bank.
CHINA INVESTMENT CORPORATION INVESTMENT IN MORGAN STANLEY Firms: Sullivan & Cromwell, Davis Polk & Wardell Banks: Morgan Stanley Why: This was one of the highest-profile transactions anywhere, of any category, in 2007. This was a ground-breaking investment by a Chinese state-owned entity for a significant stake in a major global investment bank. The transaction required
the development and structuring of complex financial instruments and was executed within an extraordinarily expedited timetable – less than three weeks from legal counsel’s initial involvement to the closing. The result was a deal reported to be the largest private/ strategic investment by a Chinese state-owned entity in a single company in the United States.
CARLYLE INVESTMENT IN CHINA PACIFIC Firms: King & Wood, Fangda, Linklaters Banks: Merrill Lynch, China International Capital Corporation Why: This deal involved a swap of Carlyle’s previous US$400m investment in China Pacific Life Insurance, a subsidiary of CPG, into the parent company. As at the date of the deal it was the largest private equity investment in PRC.
COSCO ASSETS ACQUISITION Firms: Commerce & Finance, Fangda, Paul Hastings, Zong Heng Banks: China International Capital Corporation Why: This deal represents the largest ever acquisition by a PRC listed company using shares as consideration.
SEB INTERNATIONAL SAS ACQUISITION IN SUPOR Firms: Gide Loyrette Nouel, Llinks, Chen & Co. Banks: Calyon (France), CLSA (Hong Kong), Guosen Securities Why: This deal represents one of the first direct acquisitions of a PRC listed company by a foreign company and the first direct acquisition of a controlling interest in an A-shares listed company. It is also one of the first anti-monopoly investigations cleared by the MOFCOM for this type of transaction. In addition, it is the first deal ever that has adopted a partial tender offer launched by a foreign company in the PRC market. This meant that the deal involved a very innovative acquisition structure, using a complex scheme encompassing transfer by agreement, a private placement and a tender offer to address the numerous constraints of PRC securities regulations.
ARCELOR MITTAL ACQUISITION IN CHINA ORIENTAL GROUP COMPANY Firms: Baker & McKenzie, King & Wood, Herbert Smith, Freshfields Banks: UBS Securities Why: This was a complex transaction involving various strategic, legal and regulatory issues. Part of the challenging aspect of the deal was the acquisition of a 28% stake in China Oriental coupled with the arrangements under the shareholders agreement between ArcelorMittal, Mr. Han, Wellbeing Holdings Limited and Chingford Holdings Limited. These are important steps in enabling ArcleorMittal to strengthen its position in the fastestgrowing steel market in the world – China.
EVENTS
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International Dealmaker of the Year FINALISTS
private portfolio acquisition of power projects in China (KEPCO’s acquisition of a portfolio of assets in Shanxi Province) and the largest FDI project in China.
SPONSORS
China Dealmaker of the Year
OMEGA
Jeanette Chan – Paul Weiss Why: Bringing an infectious enthusiasm to her work, Jeanette Chan enjoyed an extraordinary 2007. A newcomer to the category, Ms Chan is known for her ability to serve as a bridge between Chinese and Western interests in crossborder negotiations while providing a roadmap through complex regulatory mazes. Among her many successes in 2007, she served as principal lawyer for Microsoft’s investment program in China and assisted longstanding client Motorola in its acquisition of a cable set-top box business.
Teresa Ko – Freshfields
FINALISTS Wei Junxian – Dacheng Why: Wei Junxian enjoys a strong reputation for his work in capital markets, private equity investments, corporate governance and mergers & acquisitions. He excels in designing concise, efficient, pragmatic and alternative transaction structures for corporate finance and investment fund under legal and business environment with China’s local characteristics.
Why: Last year’s winner in the category, Teresa Ko led Freshfields through a strong 2007, with this nomination further proof of the continued high esteem in which she is held by her peers in the industry.
Xiao Wei – Jun He
Celia Lam – Linklaters
Bai Yanchun – King & Wood
Why: Celia Lam continues to enjoy a strong reputation as one of the leading dealmakers in the Chinese equity arena. Over the course of 2007 Lam worked on a series of market-shaping deals including Industrial and Commercial Bank of China’s US$5.5bn acquisition of a strategic interest in South Africa’s Standard Bank; China Railway Group’s US$5.5bn IPO, and Bank of Communications’s US$3.3bn A-share offering, the fourth-largest fundraising in China to date.
Why: Bai Yanchun advised a number of major domestic firms on their IPOs, and is well known for his expertise in the venture capital arena.
Jon Christianson – Skadden Arps
Why: A new entrant, Shao Guozhong has had a fruitful year toiling in the fields of trade finance, foreign direct investment, mergers and acquisitions, real estate and liquidations. In 2007 he served as exclusive PRC law counsel for the Hong Kong branch of the Royal Bank of Scotland and successfully advised them on a number of deals.
Why: The past year was another groundbreaking one for Christianson with 2007 seeing his involvement in everything from the acquision of a US$3bn stake in Blackstone Group by China’s sovereign wealth fund to a historic deal in which he represented Bear Stearns in its US$1bn cross-investment in China CITIC. Having worked on virtually every major transaction handled by Skadden on the mainland over the past 16 years, Christianson’s Rolodex is thick with contacts across China and around the world.
Howard Zhang – O’Melveny & Myers Why: A new entrant, in 2007 Howard Zhang was instrumental in developing many of O’Melveny & Myers’ heavy-hitting clients, and he boasts an impressive deal roster having represented – among many others – News Corp. in connection with the launch of MySpace China; CCMP Capital Asia in its acquisition of Kaidi Environment; and Carlyle Asia in several of its investments in the PRC.
Andrew Ruff – Shearman & Sterling Why: Andrew Ruff hit the ground running when he relocated to open Shearman’s Shanghai office in the middle of last year. In just nine months in his new digs he closed over US$5bn in projects. Ruff has worked on some of 2007’s largest and most complicated projects, including the largest project financing in China (Fujian Refining & Petrochemical), the largest
TITLE SPONSOR:
Why: A two-time previous winner in the category, Xiao Wei continues to enjoy a strong reputation among his peers as one of China’s legendary dealmakers.
Jeffrey Ding – Fangda Why: Extensive experience in M&As of listed and unlisted companies, domestic and overseas securities offering, advised a large number of multinational companies in joint venture projects in China in various industries.
The prestige watch manufacturer OMEGA was founded in 1848 and since then has continually set the pace in the many fields of watchmaking: from precision, competitions, sports timekeeping, design awards to watches for professional use in space or underwater, OMEGA identifies with a world of achievements that includes the conquest of space, timekeeping at 22 Olympic Games, numerous precision records and design awards as well as the launch in 1999 of the revolutionary Co-Axial calibre, one of the 20th’s century’s major innovations in mechanical watchmaking, designed with the English star watchmaker George Daniels. OMEGA will be Official Timekeeper for the Beijing 2008, Vancouver 2010 and London 2012 Olympic Games. Carlos Cárdenas, Vice president of OMEGA China
Shao Guozhong – Jincheng & Tongda
David Yu – Llinks Why: Another newcomer to the category, Llinks’s David Yu enjoyed a strong 2007, leading his firm’s M&A team to the completion of some 30 deals.
Zhang Xuebing – Zhong Lun Why: As a founding partner of the firm, Zhang Xuebing has brought studious discipline to the management of Zhong Lun. From a small firm starting in 1993 with just five lawyers, this firm has grown to be a recognised player in a number of fields, with Zhang becoming a recognised pioneer of real estate practice in the process. Over 2007 Zhang advised a number of domestic and international developers in their forays into international capital markets and acted as counsel for a number of international investment funds in their acquisition of real estate and their providing of finance to local developers.
Deal of the Year FINALISTS To be announced on the evening
Carlos Cárdenas enjoys 11 years of experience with OMEGA in different markets. Before being appointed as the Vice President of OMEGA China in April 2007, he took his role as the Sales Manager of OMEGA North and Latin America and the Regional Sales Manager Far East affiliates. A well-traveled international business professional, Carlos speaks several languages including English, French, German and Spanish. His hobbies and interests include travel, arts and sports.
AWARD SPONSORS:
HSBC Private Bank Global Wealth Solutions
At HSBC Private Bank, we aim to be your advisers to help protect, manage and transfer your wealth efficiently while preserving it for future generations. We assume nothing about you, your situation, or your aspirations. We keep an open mind towards the ever-
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changing world of finance, the markets and legal environments. This way, we build a relationship based on mutual understanding, respect and, most importantly, on trust. Global Wealth Solutions is a business line within HSBC Private Bank providing wealth planning solutions for individuals and their families. As one of the largest and most versatile fiduciaries, we offer expertise in the establishment and administration of trusts, foundations and other structures as part of generational wealth planning. Selwyn Au-Yeung, Senior Director & Regional Head of Wealth Planning, Global Wealth Solutions Mr. Au-Yeung has over nineteen years of experience in the accounting, tax and trust industries. He is currently Senior Director and Head of Wealth Planning, HSBC Private Bank Global Wealth Solutions where he is responsible for assisting Private Bank clients throughout Asia with wealth planning solutions. Prior to this, he was Vice President of the Citigroup Private Bank where he handled estate and succession planning matters for Asian families, particularly those with tax issues in Canada and the U.S. He has also been a lecturer for the Certified General Accountants Association of Canada in Hong Kong and Guangzhou (Jinan University). Mr. Au-Yeung received his formal training with Deloitte Haskins & Sells in Toronto and later joined Deloitte’s Hong Kong practice where he specialised in trust and pre-migration tax planning. Mr. Au-Yeung is a qualified Canadian Chartered Accountant and is a member of the Canadian Institute of Chartered Accountants, the Institute of Chartered Accountants in Ontario and the Society of Tax and Estate Practitioners. He was also a member of the Finance Committee of the Canadian Chamber of Commerce. He holds a Bachelor of Arts (Honors) degree in Chartered Accountancy studies from the University of Waterloo in Canada.
products to professional firms. Their success is built on the ability to integrate with customer’s existing IT infrastructure, including interfaces with all leading practice management and document management systems. Copitrak is the ideal choice for firms seeking local, national or global solutions. Copitrak are the sole distributors of TimeKM™ in Asia. TimeKM facilitates an enterprise time capture environment, simple to use any time, anywhere, on any device. With multiple capture points across the firm (using desktop or Blackberry) professionals can track hours when work is performed (e-mail, phone, documents, client meetings and so on), while TimeKM’s collaborative model allows Assistants to reconcile, report and manage case details for tracking / billing. Gary Shek , General Manager of Copitrak Systems (Asia) Ltd Gary is the General Manager of Copitrak Systems (Asia) Ltd, the world leading Cost Recovery and Management solution provider for legal firms and he joined the company in 2002 when the company first established the Asia Pacific headquarter in Hong Kong. Since then, Gary has been actively participating in the consultation and deployment of Cost Management and Recovery strategy for legal firms in Asia including some of the magic circle firms in the UK and some of the biggest law firms in the US and Hong Kong. Gary has profoundly established the company as a specialist in Cost Management and Recovery and has grown the client base from zero to more than 70 in the region in the past years. Throughout the years, Gary had witnessed how the concept of Cost Management and Recovery fits into different firms’ operational practices across countries and consequently increase the firms’ operational effectiveness as well as tangible and intangible profitability in a measurable and traceable manner.
Gieves & Hawkes
SPONSORS:
Copitrak Systems (Asia) Ltd
Copitrak provide a fully integrated suite of cost & expense management and recovery
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All over the world, “Savile Row” stands for the very best in men’s tailoring, and it is fitting that Gieves & Hawkes should be “Number 1 Savile
Row” – a remarkable address. With 200 years of unbroken service to the British Monarchy and the Royal Family, Gieves & Hawkes is proud to be the only menswear designer to hold three Royal Warrants of Appointments : to HM the Queen, HRH Duke of Edinburgh and HRH Prince of Wales. Today, Gieves & Hawkes, as the purveyor of quintessential English style, present individuals with modern classics across their wardrobe, from formal evening wear to suiting and through to casual wear. Jeremy Hobbins, Group Managing Director, LiFung Trinity Group Jeremy Hobbins is the Group Managing Director of LiFung Trinity Group, the licensee of Gieves & Hawkes for Asia Pacific, and is the director of a number of companies operating in the Asian region.
Porsche Centre Shanghai
The Porsche Centre Shanghai commenced operations on August 19, 2003, providing personal service to all customers in the East China region. The showroom is centrally located in the heart of the city, along the prestigious Nanjing Road. In the 630m2 showroom and workshop, Porsche professional staff provide expertise on all Porsche products, including the newest vehicles of current model range. The showroom also displays a variety of Porsche Design Selections items, such as model cars, watches and shirts. 650 cars were sold in 2007. Chun (Tommy) Zhao, General Manager, Porsche Centre Shanghai Tommy is General Manager of Porsche Center Shanghai. He has over 15 years working experience in China Auto industry and plays many roles as senior manager in an investment company, senior strategy consultant, and operations manager.
EVENTS
www.asianlegalonline.com
Grant Thornton
Grant Thornton is one of Hong Kong’s leading accountancy firms providing financial advice to businesses and their owners. We have a long track record of helping businesses to expand and explore business opportunities locally and internationally. Services include assurance, business risk, corporate finance, forensic & investigation, restructuring and tax services. In Hong Kong and mainland China, Grant Thornton has offices in Hong Kong, Beijing, Shanghai, Guangzhou and Shenzhen, employing over 1,000 people. Grant Thornton is a member of Grant Thornton International Ltd - an organisation of member firms operating in 112 countries, employing over 22,600 people in 519 offices. Mr. Alan Tang, Partner and Head of Specialist Advisory Services, Grant Thornton Alan has over 25 years in-depth hands-on experience in various Specialist Advisory engagements in a wide spectrum of industries and service lines, including corporate advisory, restructuring and insolvency, mergers and acquisitions, due diligence, valuation, investigation, debt recovery, fund tracing, litigation support, expert witness and forensic accounting assignments involving operations in Hong Kong, the PRC and various tax haven jurisdictions. Alan is the author of “Insolvency in China and Hong Kong - A Practitioner’s Perspective” published by Sweet & Maxwell Asia in 2005 (circa. 1200 pages). Grant Thornton’s correspondent firm in Beijing is registered by the Beijing Higher People’s Court on the Panel of Approved Administrators, under the New Enterprise Bankruptcy Law.
MWE China Law Offices
MWE China Law Offices is a Chinese law firm with a seasoned and integrated professional team based in Shanghai. We are well-established
Chinese lawyers, and possess an in-depth knowledge and understanding of the local laws, customs and regulations of the People’s Republic of China combined with a Western-style approach to client service. MWE China Law Offices has strategically aligned with McDermott Will & Emery, an international law firm with 15 offices in the United States and Europe. This enables us to provide legal services and business advice to both Chinese companies and multinational companies doing business in China. Kevin Y. Qian, Partner, MWE China Law Offices Mr. Qian is a partner of MWE China Law Offices. His areas of legal experience include international syndicate loans, venture capital investments, equipment leasing, project financing, joint ventures, establishment and financing for high-tech companies, technology licensing, M&A, international arbitration and other commercial business areas.
industrial, office, retail and residential property. Andrew Slevin, Executive Director/ General Manager As Executive Director and General Manager of Knight Frank Shanghai, Andrew Slevin is responsible for management of advisory services on all aspects of the China real estate market with particular emphasis on commercial, retail and residential transactions, project management, property and equipment valuation advice, joint-venture advisory assignments and general property consultancy work for overseas companies. Andrew is also responsible for overseeing Knight Frank’s specialist plant, machinery, intangible and trademark valuation assignments in the Asia Pacific region.
LexisNexis
John Z.L. Huang, Partner, MWE China Law Offices Mr. Huang is a partner of MWE China Law Offices. He focuses his practice on cross border transactions, international tax, general corporate law, foreign direct investments, private equity, intellectual property, antitrust and unfair competition as well as dispute resolution
Knight Frank
Mr. Aley Chang has over 23 years of experience in sales, marketing, business development, M & A and general management in media and information industry. He has held various senior positions in China, Hong Kong, Taipei and London driving business expansion for different business units in PCCW before joining LexisNexis.
BEST DRESSED SPONSORS:
Gieves & Hawkes Knight Frank is a leader in global property consultancy. Knight Frank and its global partner Newmark Knight Frank together operate from over 165 offices in 37 countries on six continents of established and emerging property markets. Knight Frank’s team of professional agents, valuers, town planners, retail planners, architects, building surveyors and engineers offers a complete range of professional property services to major corporations, investors, developers and government entities as well as independent advice to both owners and tenants of
Guy Laroche
53
EVENTS
www.asianlegalonline.com
International Dealmaker of the Year FINALISTS
private portfolio acquisition of power projects in China (KEPCO’s acquisition of a portfolio of assets in Shanxi Province) and the largest FDI project in China.
SPONSORS
China Dealmaker of the Year
OMEGA
Jeanette Chan – Paul Weiss Why: Bringing an infectious enthusiasm to her work, Jeanette Chan enjoyed an extraordinary 2007. A newcomer to the category, Ms Chan is known for her ability to serve as a bridge between Chinese and Western interests in crossborder negotiations while providing a roadmap through complex regulatory mazes. Among her many successes in 2007, she served as principal lawyer for Microsoft’s investment program in China and assisted longstanding client Motorola in its acquisition of a cable set-top box business.
Teresa Ko – Freshfields
FINALISTS Wei Junxian – Dacheng Why: Wei Junxian enjoys a strong reputation for his work in capital markets, private equity investments, corporate governance and mergers & acquisitions. He excels in designing concise, efficient, pragmatic and alternative transaction structures for corporate finance and investment fund under legal and business environment with China’s local characteristics.
Why: Last year’s winner in the category, Teresa Ko led Freshfields through a strong 2007, with this nomination further proof of the continued high esteem in which she is held by her peers in the industry.
Xiao Wei – Jun He
Celia Lam – Linklaters
Bai Yanchun – King & Wood
Why: Celia Lam continues to enjoy a strong reputation as one of the leading dealmakers in the Chinese equity arena. Over the course of 2007 Lam worked on a series of market-shaping deals including Industrial and Commercial Bank of China’s US$5.5bn acquisition of a strategic interest in South Africa’s Standard Bank; China Railway Group’s US$5.5bn IPO, and Bank of Communications’s US$3.3bn A-share offering, the fourth-largest fundraising in China to date.
Why: Bai Yanchun advised a number of major domestic firms on their IPOs, and is well known for his expertise in the venture capital arena.
Jon Christianson – Skadden Arps
Why: A new entrant, Shao Guozhong has had a fruitful year toiling in the fields of trade finance, foreign direct investment, mergers and acquisitions, real estate and liquidations. In 2007 he served as exclusive PRC law counsel for the Hong Kong branch of the Royal Bank of Scotland and successfully advised them on a number of deals.
Why: The past year was another groundbreaking one for Christianson with 2007 seeing his involvement in everything from the acquision of a US$3bn stake in Blackstone Group by China’s sovereign wealth fund to a historic deal in which he represented Bear Stearns in its US$1bn cross-investment in China CITIC. Having worked on virtually every major transaction handled by Skadden on the mainland over the past 16 years, Christianson’s Rolodex is thick with contacts across China and around the world.
Howard Zhang – O’Melveny & Myers Why: A new entrant, in 2007 Howard Zhang was instrumental in developing many of O’Melveny & Myers’ heavy-hitting clients, and he boasts an impressive deal roster having represented – among many others – News Corp. in connection with the launch of MySpace China; CCMP Capital Asia in its acquisition of Kaidi Environment; and Carlyle Asia in several of its investments in the PRC.
Andrew Ruff – Shearman & Sterling Why: Andrew Ruff hit the ground running when he relocated to open Shearman’s Shanghai office in the middle of last year. In just nine months in his new digs he closed over US$5bn in projects. Ruff has worked on some of 2007’s largest and most complicated projects, including the largest project financing in China (Fujian Refining & Petrochemical), the largest
TITLE SPONSOR:
Why: A two-time previous winner in the category, Xiao Wei continues to enjoy a strong reputation among his peers as one of China’s legendary dealmakers.
Jeffrey Ding – Fangda Why: Extensive experience in M&As of listed and unlisted companies, domestic and overseas securities offering, advised a large number of multinational companies in joint venture projects in China in various industries.
The prestige watch manufacturer OMEGA was founded in 1848 and since then has continually set the pace in the many fields of watchmaking: from precision, competitions, sports timekeeping, design awards to watches for professional use in space or underwater, OMEGA identifies with a world of achievements that includes the conquest of space, timekeeping at 22 Olympic Games, numerous precision records and design awards as well as the launch in 1999 of the revolutionary Co-Axial calibre, one of the 20th’s century’s major innovations in mechanical watchmaking, designed with the English star watchmaker George Daniels. OMEGA will be Official Timekeeper for the Beijing 2008, Vancouver 2010 and London 2012 Olympic Games. Carlos Cárdenas, Vice president of OMEGA China
Shao Guozhong – Jincheng & Tongda
David Yu – Llinks Why: Another newcomer to the category, Llinks’s David Yu enjoyed a strong 2007, leading his firm’s M&A team to the completion of some 30 deals.
Zhang Xuebing – Zhong Lun Why: As a founding partner of the firm, Zhang Xuebing has brought studious discipline to the management of Zhong Lun. From a small firm starting in 1993 with just five lawyers, this firm has grown to be a recognised player in a number of fields, with Zhang becoming a recognised pioneer of real estate practice in the process. Over 2007 Zhang advised a number of domestic and international developers in their forays into international capital markets and acted as counsel for a number of international investment funds in their acquisition of real estate and their providing of finance to local developers.
Deal of the Year FINALISTS To be announced on the evening
Carlos Cárdenas enjoys 11 years of experience with OMEGA in different markets. Before being appointed as the Vice President of OMEGA China in April 2007, he took his role as the Sales Manager of OMEGA North and Latin America and the Regional Sales Manager Far East affiliates. A well-traveled international business professional, Carlos speaks several languages including English, French, German and Spanish. His hobbies and interests include travel, arts and sports.
SPONSORS:
Copitrak Systems (Asia) Ltd
Copitrak provide a fully integrated suite of cost & expense management and recovery products to professional firms. Their success is built on the ability to integrate with customer’s existing IT infrastructure, including interfaces with all leading practice
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management and document management systems. Copitrak is the ideal choice for firms seeking local, national or global solutions. Copitrak are the sole distributors of TimeKM™ in Asia. TimeKM facilitates an enterprise time capture environment, simple to use any time, anywhere, on any device. With multiple capture points across the firm (using desktop or Blackberry) professionals can track hours when work is performed (e-mail, phone, documents, client meetings and so on), while TimeKM’s collaborative model allows Assistants to reconcile, report and manage case details for tracking / billing. Gary Shek , General Manager of Copitrak Systems (Asia) Ltd Gary is the General Manager of Copitrak Systems (Asia) Ltd, the world leading Cost Recovery and Management solution provider for legal firms and he joined the company in 2002 when the company first established the Asia Pacific headquarter in Hong Kong. Since then, Gary has been actively participating in the consultation and deployment of Cost Management and Recovery strategy for legal firms in Asia including some of the magic circle firms in the UK and some of the biggest law firms in the US and Hong Kong. Gary has profoundly established the company as a specialist in Cost Management and Recovery and has grown the client base from zero to more than 70 in the region in the past years. Throughout the years, Gary had witnessed how the concept of Cost Management and Recovery fits into different firms’ operational practices across countries and consequently increase the firms’ operational effectiveness as well as tangible and intangible profitability in a measurable and traceable manner.
AWARD SPONSORS:
HSBC Private Bank Global Wealth Solutions
legal environments. This way, we build a relationship based on mutual understanding, respect and, most importantly, on trust. Global Wealth Solutions is a business line within HSBC Private Bank providing wealth planning solutions for individuals and their families. As one of the largest and most versatile fiduciaries, we offer expertise in the establishment and administration of trusts, foundations and other structures as part of generational wealth planning. Selwyn Au-Yeung, Senior Director & Regional Head of Wealth Planning, Global Wealth Solutions Mr. Au-Yeung has over nineteen years of experience in the accounting, tax and trust industries. He is currently Senior Director and Head of Wealth Planning, HSBC Private Bank Global Wealth Solutions where he is responsible for assisting Private Bank clients throughout Asia with wealth planning solutions. Prior to this, he was Vice President of the Citigroup Private Bank where he handled estate and succession planning matters for Asian families, particularly those with tax issues in Canada and the U.S. He has also been a lecturer for the Certified General Accountants Association of Canada in Hong Kong and Guangzhou (Jinan University). Mr. Au-Yeung received his formal training with Deloitte Haskins & Sells in Toronto and later joined Deloitte’s Hong Kong practice where he specialised in trust and pre-migration tax planning. Mr. Au-Yeung is a qualified Canadian Chartered Accountant and is a member of the Canadian Institute of Chartered Accountants, the Institute of Chartered Accountants in Ontario and the Society of Tax and Estate Practitioners. He was also a member of the Finance Committee of the Canadian Chamber of Commerce. He holds a Bachelor of Arts (Honors) degree in Chartered Accountancy studies from the University of Waterloo in Canada.
Gieves & Hawkes
At HSBC Private Bank, we aim to be your advisers to help protect, manage and transfer your wealth efficiently while preserving it for future generations. We assume nothing about you, your situation, or your aspirations. We keep an open mind towards the everchanging world of finance, the markets and
52
All over the world, “Savile Row” stands for the very best in men’s tailoring, and it is fitting that Gieves & Hawkes should be “Number 1 Savile
Row” – a remarkable address. With 200 years of unbroken service to the British Monarchy and the Royal Family, Gieves & Hawkes is proud to be the only menswear designer to hold three Royal Warrants of Appointments : to HM the Queen, HRH Duke of Edinburgh and HRH Prince of Wales. Today, Gieves & Hawkes, as the purveyor of quintessential English style, present individuals with modern classics across their wardrobe, from formal evening wear to suiting and through to casual wear. Jeremy Hobbins, Group Managing Director, LiFung Trinity Group Jeremy Hobbins is the Group Managing Director of LiFung Trinity Group, the licensee of Gieves & Hawkes for Asia Pacific, and is the director of a number of companies operating in the Asian region.
Porsche Centre Shanghai
The Porsche Centre Shanghai commenced operations on August 19, 2003, providing personal service to all customers in the East China region. The showroom is centrally located in the heart of the city, along the prestigious Nanjing Road. In the 630m2 showroom and workshop, Porsche professional staff provide expertise on all Porsche products, including the newest vehicles of current model range. The showroom also displays a variety of Porsche Design Selections items, such as model cars, watches and shirts. 650 cars were sold in 2007. Chun (Tommy) Zhao, General Manager, Porsche Centre Shanghai Tommy is General Manager of Porsche Center Shanghai. He has over 15 years working experience in China Auto industry and plays many roles as senior manager in an investment company, senior strategy consultant, and operations manager.
IPBA
ISSUE 5.3
IPBA set to impress in LA “Participation in IPBA activities is an unsurpassed way for an [individual business] lawyer to establish and develop professional relationships with like-minded colleagues in the region” GEROLD LIBBY, IPBA CONFERENCE 54
I
n 2006, it was the sunny, sandy shores of Sydney, Australia. A year later, it was off to the heart of Asia’s fastest growing economy, Beijing. This year, however, the Inter-Pacific Bar Association (IPBA) has given Asia a break and opted for downtown Los Angeles. The choice of venue is fitting. As Asia has emerged with such promise, the interest and activities of US corporations, investment banks, funds and private
investors in the region have snowballed, driving demand for Asia-focused legal services. Never before has the imperative for legal k nowledge, exper tise and relationships among Asia-interested lawyers in the US and elsewhere been more critical. The US is also the source of the hottest economic discussion topic of the year, and while these domestic sub-prime woes and their effects may well dominate conversation during the coffee breaks at
FAST FACTS: LOS ANGELES Los Angeles is the largest city in the state of California and the second-largest city in the US. The city of LA has an estimated population of 3.8 million, and the fivecounty area around LA has an estimated population of 16.4 million. The LA area is one of the world’s focal points of culture, technology, international trade and higher education, and is also home to world-renowned institutions across a broad range of cultural and professional fields. The city leads the world in entertainment production, including motion pictures, television and recorded music.
COMMENTARY
www.asianlegalonline.com
Choosing a legal form for foreign VC and PE investments in China by PE investors in the PRC. Pursuant to Article 108 of the Partnership Law, specific regulations will be contemplated by the PRC government to regulate foreign investment in PRC partnerships. For this purpose, the Ministry of Commerce (MOFCOM) drafted the Foreign Investment Partnership Regulations (FIPR) and circulated it to other governmental agencies for comments on 25 January 2007. Almost one year later, the new regulations are still pending and yet to be promulgated. The draft FIPR raises issues in relation to the viability and advisability of establishing a foreign-invested partnership (FIP) pursuant to the Partnership Law. It is a general understanding that the existing requirements for foreign investment enterprises will also apply to FIPs. However, the draft FIPR are silent on many issues and are not fully consistent with the amended Partnership Law governing domestic investors in partnerships. For example, under Article 2 of the draft FIPR, MOFCOM will permit the establishment of FIPs, and Chinese individuals and other legal persons are expressly permitted to cooperate with foreign investors to establish FIPs. However, under Article 16 of the new Partnership Law, foreign investors are not permitted to make capital contributions by performing services for partnership. Also, unlike a domestic partnership in which the investors may contribute capital in accordance with a schedule agreed to and set forth in the partnership agreement, foreign investors in an FIP must contribute capital in a lump sum within 90 days of the approval of the FIP. Additionally, foreign general liability partners are required to file a list of their major assets with the PRC approval and registration authorities, and must update such filing whenever there are material changes to such assets. Also, there are some important regulatory issues not being mentioned in the draft FIPR, particularly relating to the business form that foreign venture capitalists or PE funds may choose. For example, it is unclear whether a limited liability company can be the general partner of a limited liability partnership.
It is common in the western world that in a foreign limited partnership (specifically as a PE fund) almost all general partners take the form of a limited liability company rather than an individual. Another big barrier is that the draft regulations do not address whether a foreign invested partnership would be permitted to operate as an investment vehicle. Neither does the law say if additional approvals of MOFCOM or other government authorities such as MOST are required for each portfolio investment. Furthermore, the draft regulations do not address whether and how a foreign exchange will be handled in respect of foreign investors in FIPs. Despite the uncertainties and vagueness noted above, the amended Partnership Law and the draft MOFCOM regulations have set forth the basic principles for foreign investors that plan to set up VCs and PE funds. It remains to be seen whether these benefits may be extended to foreign investors. Jiabin Wang, S.J.D. (Licensed Attorney in China & New York) Senior Partner, Lifang & Partners, Tower A, 11th Floor, Nan Xin Cang Int’l Mansion Dongcheng District, Beijing 100007 Tel: +86-10-6409-6099; Fax: +86-10-6409-6260 Email: jiabinwang@lifanglaw.com Website: www.lifanglaw.com
FIRM PROFILE
V
enture capital (VC) and private equity (PE) investment can drive and foster innovation in technology, and in business and entrepreneurship in Chinese enterprises. Foreign funded VC organisations are now starting to enter China’s VC industry. A big concern for them is which legal form to choose under the existing legal framework in China. There are some specific regulations – specifically the NDRC Provisional Measures for the Administration of Venture Capital Enterprises on 15 November 2005 – allowing VC enterprises to be formed in China, either through offshore fund or foreign invested VC enterprises. VC enterprises with foreign investment are governed by the 2003 Regulations for the Administration of Venture Capital Enterprises with Foreign Investment. VC enterprises can take the form of a limited liability company, a company limited by shares or another enterprise form specified by the state. A VC enterprise which has adopted the form of a company may appoint another VC enterprise or VC management consultancy to act as its management consulting company and be responsible for its investment management business. VC enterprises and VC management consultancies are established by simple registration with the state administration for industry and commerce. Also, the PRC law explicitly authorises the structure of a contractual joint venture that is not a separate “legal person” but could be a limited partnership structure if the parties wish to allocate the risks and rewards (after-tax distribution) in that way. Nevertheless, the amended Partnership Enterprise Law of PRC (Partnership Law) effective on 1 June 2007 only applies to domestic investors. The new Partnership Law is widely recognised as a significant development in the evolution of corporate law in China, in that it provides for the type of flexible partnership structure with limited liability features that are well-developed for VCs and PEs. However, at present, the Partnership Law governs domestic partnership enterprises and does not apply to foreign investment
北京立方律师事务所高级合伙人 王加斌博士（美国纽约州及中国注册律师） 中国北京市东四十条甲22号南新仓国际大厦 A1105室（100007）
Jiabin Wang, Lifang & Partners
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PAST HOST CITIES 1991
Tokyo
1992
Sydney
1993
Taipei
1994
Singapore
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San Francisco
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Manila
1997
Kuala Lumpur
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Auckland
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Bangkok
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Vancouver
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Tokyo
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Hong Kong
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New Delhi
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Seoul
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Bali
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Sydney
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Beijing
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Los Angeles
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Manila
this year’s IPBA conference, there is no doubt the Asian growth story will lighten the mood. Delegates are in for an impressive event. “The highlight of any IPBA annual conference is the plenary session on the morning of the first day of the conference, and the LA conference will be no exception,” conference chair Gerold Libby says. Speakers at the plenary session will include Robert Eckert, chairman of the board and CEO of US toy giant Mattel, and William Overholt, director of the RAND Center for Asia Pacific Policy. The incumbent US trade representative, Ambassador Susan Schwab, has also been invited to give the keynote address on the opening day of the conference.
The 2008 conference is being held on a somewhat larger scale than recent IPBA annual conferences. While the format will be similar, it will offer 39 educational programs sponsored by IPBA committees, featuring around 225 speakers – more than any other recent IPBA conference. “The 39 committee programs cover a very broad range of topics, many of which are likely to be of great interest to our members,” Libby says. “ They include programs on doing business in China, Islamic f inance, and the collapsing boundaries between technology, communications and entertainment delivery, among others. We’ll also be holding a corporate counsel forum to be presented in cooperation with the Association of Corporate Counsel.” T here a re c u r rently 1, 8 0 0 I PBA members, and virtually all of these are business lawyers in a private law practice involving the Asia-Pacific region to a significant extent. As a result, the IPBA aims to be a resource for individual business lawyers interested in the AsiaPacific region, as they try to keep abreast of the changing legal landscape. “In addition, participation in IPBA activities is an unsurpassed way for such a lawyer to establish and develop professional relationships with like-minded colleagues in the region,” Libby says. The IPBA’s membership has not grown
significantly in recent years. Libby suggests this is “probably because most of our [IPBA’s] members have been well aware of the dynamic growth of Asian economies, and the evolution of legal systems in the Asia-Pacific region, for some time”. However, he calls growth for the IPBA in the next few years “inevitable”. ALB
IPBA ANNUAL CONFERENCE When?
27–30 April 2008
Where?
Hyatt Regency Century Plaza, Los Angeles, California US
Expected attendance
750–800 delegates
IPBA MEMBERSHIP US
Japan
Singapore
India
China
Other
Women
12%
13%
5%
11%
4%
56%
18%
WHAT IS THE IPBA? The Inter-Pacific Bar Association (IPBA) is an international association of business and commercial lawyers with a focus on the AsiaPacific region. Members are either Asia-Pacific residents or have a strong interest in this part of the world. The IPBA was founded in April 1991 at an organising conference held in Tokyo attended by more than 500 lawyers from throughout Asia and the Pacific. Since that time, it has grown to become a pre-eminent organisation in the area of Asia law and business, with a membership of more than 1,800 lawyers from over 67 jurisdictions around the world. The growth of the IPBA has been spurred by the tremendous growth of Asian economies. As companies throughout the region become part of the global economy, they require additional assistance from lawyers in their home country and from throughout the region. One goal of the IPBA is to help lawyers stay abreast of developments that affect their clients. Another is to provide an opportunity for business and commercial lawyers throughout the region to network with lawyers of similar interests and fields of practice. Supported by major bar associations, law societies and other organisations throughout Asia and the Pacific, the IPBA is playing a significant role in fostering ties among members of the legal profession with an interest in the Asia-Pacific region. Source: IPBA
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Sign off Not the sweetest thing
C
Dishing out the heartbreak on V-Day O
ffering a stark reminder that sometimes cupid misses the mark, a Charleston attorney handled the filing for free divorces offered by a Charleston, WVa, radio station on Valentine’s Day. WKLC-FM, better known as Rock 105, offered its listeners the chance to win a free divorce between 4pm and 5pm, with the winner being drawn at the end of the hour. However, there was a catch, with program director Jay Nunley apparently stating that the contest win would only cater to a relatively uncomplicated divorce. ALB
onfectionary company Nestlé recently booted Freshfields Bruckhaus Deringer from its team during its first European panel review in almost five years, due to a business conflict of interest with Nestlé’s arch-rival Mars. The firm also serves as a key advisor to Mars and – when it came to the crunch –
Rates sky-rocket for private practice firms W
hile in-house counsel may not share the sentiment, it seems partners working for the Magic Circle f irms certainly have something to smile about. According to a recent study, average partner hourly rates at Magic Circle firms have risen by 67% during the past four years, from £375 to £625 – with the cost for specialist tax or regulatory advice weighing in at a costly £700 per hour. Also riding the rate rise, UK national firm partner rates have increased by about 89%, from £185 to £350 an hour. ALB
it seems that Nestlé just could not handle having part of its legal team working with the enemy, despite apparently being pleased with the quality of work delivered by Freshfields. Howrey will take over from Freshfields as Nestlé’s lead antitrust counsel in Brussels. ALB
Lawyers get technical
T
he LegalTech conference kicked off in New York last month, showcasing hundreds of tech-savvy and innovative options for lawyers looking to upgrade. The event, lauded as the biggest industry event of the year, was held at the Hilton New York and featured hundreds of speakers and exhibitors, and quite a few parties. Attendees were provided with three floors of exhibits packed with keynote speeches and seminars, as well as the option to unwind with a cocktail at the evening receptions. ALB
Firms celebrate Valentine’s Day in London
L
ight-hearted law firms celebrated Valentine’s Day in style last month, choosing to mark the lovers’ holiday with diamond-studded parties, chocolate and strawberry buffets, or a colour-coded mufti day at the office. Lawyers at Baker & McKenzie and Denton Wilde Sapte executed the latter, with many from the firm arriving for the day’s work in red apparel and accessories to raise money for London children’s hospice, Richard House. Hammonds pulled out all stops, charming over 50 female clients who attended their Valentine’s Day party at Holts Jewellers in Hatton Garden, London. The event hosted representatives of Clydesdale Bank, Royal Bank of Scotland, Lloyds TSB, Abbey UK Corporate, Bank of Scotland, Barclays Bank, Venture Finance, BDO Stoy Hayward LLP and
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Deloitte & Touche, and saw the group take lessons in how to identify a true diamond, with one lucky participant walking away with the real thing. Addleshaw Goddard, Freshfields Bruckhaus Deringer, Linklaters, Lovells, Nabarro and SJ Berwin opted for a food affair – offering heartshaped treats in their staff canteens. Much to the delight of its staff, Freshfields splurged on two chocolate fountains, and staff were able to select from a pick-and-mix table including marshmallows, strawberries and other fruit, and partake in a little not-so-skinny dipping. However, not all firms were feeling the love, with Allen & Overy, Berwin Leighton Paisner, Clifford Chance, Clyde & Co, Herbert Smith, Olswang, Pannone, Taylor Wessing, Thompsons Solicitors and Wragge & Co all refusing to get involved. ALB
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