ISSUE 5.4
ALB Special Report: Shanghai Bucking the global trend 全球金融动荡 上海逆势而上
Salary levels Pay rates up across the board 律师薪酬全盘上涨
Equities Railway IPOs keep markets on track 铁路股IPO稳住股市阵脚
CHINA
企业法律顾问现身说法 In-house lawyers speak out • legal spend up • 5 top criteria for choosing firms • more work done in-house DEALS ROUNDUP
LATERAL MOVES
IN-HOUSE VIEW
REGULATORY UPDATES
UK, US REPORTS
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ISSUE 5.4
CHINA
Swings and roundabouts
T More firms are doing more topflight work and more local firms are receiving instructions, including as lead counsel, on international transactions
2
hese days, casting one’s eye across the headlines of the world’s broadsheet newspapers is an easy way to kill a good mood. Across Europe and the US, pundits and economists appear engaged in a race to the bottom, each trying to outdoom the last with predictions of calamity and turmoil brought on by credit crunches and loan crises. Recently one British newspaper went so far as to splash across its front page a claim that the US wasn’t just headed for a recession, but had in fact already tumbled into a fullblown depression. Errant nonsense to be sure, but there is no denying the serious slowdown affecting many of the world’s major economies. In this country, however, the numbers tell a different and far happier story. China’s GDP grew by 11.9% in 2007, according to a revised statistic, the highest growth rate since 1994. Despite the turmoil in global markets, the world’s fastest-growing major economy will continue its economic miracle, as the Asian Development Bank expects the Chinese economy to grow by 10% in 2008. The fact is that the old rules of international economics are changing quickly and largely for the better. No longer is it true that if the US sneezes, the rest of the world catches a cold – or worse. For local law firms, this means that instead of scrapping over the spoils of bankruptcies and insolvencies, they are enjoying an abundance of work, especially in the M&A, capital markets and construction arenas. With increasing Chinese domestic consumption contributing to GDP, and as multinationals continue to expand into China’s dynamic market, this growth is seemingly unstoppable. And as the economy and market mature, so too do local law firms. More firms are doing more top-flight work and more local fi rms are receiving instructions, including as lead counsel, on international transactions. Unlike a few years ago, when multinationals were the biggest buyers of legal services and local firms had to rely heavily on referrals from their international counterparts, local firms are winning mandates directly from an impressive array of state-owned and private enterprises, as well as localised multinationals. Shanghai, the host city of this year’s top legal event – the ALB China Law Awards – will soon witness this trend as the legal profession’s leaders gather on 25 April to showcase the achievements of yet another banner year. Which is all to the good and something that should restore the cheer of readers brought low by economic news from abroad.
IN THE FIRST PERSON “The latest ‘first A then H’ model is encouraged by the domestic regulators, because it enables the issuer to minimise the pricing differences between the international IPO and domestic IPO” Yan Yu, partner at Jia Yuan, on the groundbreaking model that has set a precedent for future dual listings (p6)
“The legal service market in Shanghai is very large and growing quickly, with a tremendous amount of potential and opportunity” George Wang of Jun He Law Offices on the prospects for the local legal industry (p28)
“We aren’t just dealing with contractual issues as they arise, but trying to take a proactive role and adding value to the business as legal risk managers” Gillian Meller, general manager of legal at MTR Corporation, on the changing role of in-house counsel (p38)
08 SJ 5) 20 AY 99 y S$ Ma 2D er 1 aft es 3 ere pir (th d: ex bir rly Ea
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3In-depth workshops focusing on the latest legal issues presented by top law firms 3Opportunities to network and meet leading legal experts and colleagues 3Interactive panel discussions and debates by some of Asia’s most distinguished legal speakers DISTINGUISHED SPEAKERS AND PANELISTS INCLUDE: Angeline Joyce Lee
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3
ISSUE 5.4
inside COVER STORY
38 ALB In-house Survey ALB investigates what in-house lawyers are looking for in a law firm
ANALYSIS 6
Equity market A pair of US$5bn rail IPOs and a host of positive debuts keep the domestic equity market on track
12 Deals The US sub-prime crisis is causing loss of profit through the withdrawal of deals 16 Salary trends Keeping up with market rates could make a difference for staff retention
ALB CHINA ISSUE 5.4
REGULARS
UPDATES
10 Deals in brief • Xinyuan Real Estate launches IPO and debut NYSE listing • Want Want launches second largest offering to date with IPO 18 News • Zhonglun W & D and Li He join forces • Beijing lawyers form special team to support Olympics • First tax boutique makes debut in Shanghai • US firm Miller Canfield on track to expand to Shanghai • Fulbright boosts Asian offices with five new hires 24 Appointments
18 Singapore LOO & PARTNERS 19 International tax 2008 UK budget changes AZURE TAX 20 IP IP issues with mascots & Shanghai style ROUSE & CO 21 Shanghai Issues relating to management of designated accounts LINKS LAW OFFICE 22 China New labor dispute mediation and arbitration law of the PRC PAUL WEISS 23 Regulatory Analysing China’s foreign trade agency system TAHOTA
48 Sign off
FEATURES
38
28 ALB Special Report: Shanghai 2008 Local lawyers are taking advantage of Shanghai’s flourishing legal industry
PROFILES 14 Tian Yuan Law Firm 31 AllBright Law Offices 33 HaoLiWen PRC Attorneys
44 Offshore law firms With China leading the way in Asian-owned offshore companies, offshore law firms bulk up their operations here
封面故事 38
12
企业法律顾问调查 为了让外部律师更好地了解企业对法律服务的需 求，《亚洲法律杂志》对在企业内部从事法律工
使亚太地区多笔交易流产，律所盈利或将受损
16
行情为导向来完善薪酬设计，是公司和律所留 才的关键
新闻分析 股票市场
薪酬趋势 掌握市场薪资趋势和平均薪酬涨幅，并以市场
作的律师们进行了年度调查
6
交易项目 美国次贷危机引发了全球金融信贷市场动荡，致
两支铁路股IPO在不太景气的市道中融资额
特刊
均超过50亿美金。 他们开启的新上市模式是
28
一次意义重大的国内股票发行制度改革，同 时也为资本市场律师们注入了一针强心剂
44
ALB特别报告：上海
ALB 4
10 本月交易概览 ● 房地产开发商鑫苑在美上市融资 ● 旺旺上市成为第二大内地食品概念股
18 业界新闻 ● 中伦文德与理和联姻 ● 北京律师组成机动小组服务奥运 ● 第一家国内财税专业所现身上海 ● 美国所Miller Canfield筹备上海开业 ● Fulbright新聘五位律师扩充亚洲阵营
受益于上海蓬勃发展的法律服务行业，本地律
24 聘任晋升
师正在挑战与机遇中探索崛起之路
48 想Fun设法
离岸法律事务所 遵循“走出去”的发展战略，越来越多的本
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热点
土企业在海外开展投资活动。离岸公司作 为投资工具被广泛采用，提供离岸服务的 专业律师事务所也因此可以大展拳脚
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NEWS >>
ISSUE 5.4
ANALYSIS
Dual listing using ‘first A then H’ model With share markets in a delicate state, two railway groups’ multi-billion-dollar IPOs have caught the eye of investors and lawyers. The groundbreaking ‘first A then H’ model sets a precedent for future dual listings
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Beijing’s West Railway Station
CHINA RAILWAY GROUP IPO Firm Jia Yuan Linklaters Kaiwen DLA Piper Simpson Thacher
Lead lawyers Yan Yu, Shi Zhenjian Celia Lam Liu Wei, Esther Leung, Jeffrey Mak Chris Lin, George Wang, Robert Holo
US$5.5bn Acted for Issuer Issuer Joint sponsors and underwriters Joint sponsors and underwriters
Law PRC HK, US PRC HK
Underwriters
US
CHINA RAILWAY CONSTRUCTION CORPORATION IPO Firm Deheng Law Office Baker & McKenzie Jingtian & Gongcheng Freshfields
6
Lead lawyers Li Zhihong, Chen Jingru PH Chik, Allen Shyu Li Yuguo, Wang Yingzhe, Wang Weiguo Christopher Wong, Sarah Murphy
US$5.4bn Acted for Issuer Issuer Underwriters
Law PRC HK, US PRC
Underwriters
HK, US
he volatility of the share markets in China has prompted a number of companies to cancel or delay their public offerings in recent months. Capital markets teams from law Yan Yu, firms in the region, which Jia Yuan have been stretched thin during the boom, may have been set for quieter times in 2008. However, here’s a piece of good news for firms: two recent dual listings following the ‘first A then H’ model have uncovered a silver lining of the unstable market conditions. In December 2007, China Railway Group (CRG), the largest construction company in Asia and the third largest construction contractor in the world, pioneered the ‘first A then H’ model, making history on the Hong Kong Stock Exchange. The listing successfully raised US$5.5bn, making it the largest listing of A-shares and H-shares in 2007. Three months after CRG’s ground-breaking listing, China Railway Construction Corporation (CRCC) followed suit and raised US$5.4bn on its debut on the Shanghai and Hong Kong stock exchanges. “The PRC regulators have experimented with different dual listing structures for state-owned enterprises seeking a dual listing, from ‘first H then A’, ‘A+H simultaneous’ to ‘first A then H’,” said Yan Yu, one of the lead partners from the Jia Yuan team which advised on the CRG IPO. “The latest ‘first A then H’ model is encouraged by the domestic regulators, because it enables the issuer to minimise the pricing differences between the international IPO and domestic IPO, as A-shares are typically traded at higher prices.” Yan, who worked closely with the issuer and regulators, indicated that the new structure would be adopted by most stateowned enterprises (SOEs) that want to pursue listing of both A-shares and H-shares in the future. Many will list the entire business of the corporation in one operation. International lawyers are seeing the same trend developing. Christopher Wong, a Freshfields partner based in Beijing, represented the underwriters on the CRCC IPO. Wong indicated that the need
NEWS IN BRIEF
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for PRC companies to only list in Hong Kong is decreasing as the A-share market is commanding richer valuations. There were only six H-share listings on Hong Kong’s main board in 2007, compared to 17 in 2006. A number of the Hong Kong listings, including CITIC Bank and CRG, were ‘A + H’ dual listings, either simultaneously or ‘first A then H’. “China has been encouraging good quality companies to list domestically as a way of raising the profile of the local equity markets. Going forward, it will continue to be the trend,” said Wong. “The best these companies could hope for is a ‘first A then H’ dual listing.” While there is no official policy or regulation in effect, there is recognition that companies that would be allowed to come to the H-share market will likely have to take the ‘first A then H’ route. China Pacific Insurance Group (China Pacific) and China National Southern Locomotive & Rolling Stock Industry Group (CSR) are reportedly planning to launch ‘first A then H’ dual listings of their entire groups in the next few months.
Domestic firms the first to benefit The ‘first A then H’ concept is set to ensure that domestic investors benefit from good quality companies’ strong growth and will contribute to building stronger and healthier share markets at home. The regulator’s intentions have put domestic firms among the top beneficiaries of the new policy. As most SOE assets are situated in China and governed by Chinese law, domestic firms will naturally be granted the role of lead counsel to advise on restructuring, due diligence, legal documentation, A-share offer documentation, corporate and regulatory issues, and to manage liaison and clearances with the PRC regulators. The CRG IPO capped a great year for Jia Yuan Law Firm, which experienced a 100% increase in revenues in 2007. According
to the latest statistics of the All China Lawyers Association, Jia Yuan was ranked fifth by revenue among domestic firms. “By having participated in a number of remarkable deals like CRG IPO, our firm’s revenue and headcount have been boosted,” said Yan. From commencement of the reorganisation through to the listing in December 2007, the project took 11 months to complete. More than 10 Jia Yuan lawyers dedicated nine months to the due diligence and restructuring part of the project. The firm was sought out at the end of 2006 by China Railway Engineering Corporation (CREC), which established CRG in September 2007 to serve as its publicly traded vehicle. CREC, headquartered in Beijing, owns more than 700 subsidiary companies, has over 220,000 employees and runs a wide range of businesses including surveying and designing, construction and installation, manufacturing, research and development, technical consulting, capital management as well as conducting international economic and trade activities. “It’s a gigantic project and SASAC is very strict on quality control. The level of complexity and sophistication of the transaction required the full support of our firm’s considerable resources and expertise,” Yan said. Jia Yuan’s previous experience advising on the H-share IPO of China Communications Construction Company, one of China’s largest transportation infrastructure groups, was valued by CREC and the regulators, who instructed Jia Yuan in the hope that the firm could help smooth out the way for the ‘first A then H’ listing. Beijing-headed Deheng Law Office, with abundant experience in restructuring large SOEs and listings, is the second domestic firm to cash in on the ‘first A then H’ model by acting as issuer’s PRC counsel on the CRCC IPO – the largest IPO so far this year.
“China has been encouraging good quality companies to list domestically as a way of raising the profile of the local equity markets. Christopher Wong, Freshfields Going forward, it will continue to be the trend. The best these companies could hope for is a ‘first A then H’ dual listing” CHRISTOPHER WONG, FRESHFIELDS
>> NEWS >>
MORGAN LEWIS SHAKES HANDS WITH ZHEJIANG’S T&C Since August 2007, US firm Morgan, Lewis & Bockius has actively cooperated with local organisations to present patent seminars in a number of cities. This year, Hangzhou-based entrepreneurs will benefit from the seminars, which will be co-hosted by T&C, one of the largest law firms in Zhejiang. In March, Robert Gaybrick, co-chair, partner and senior patent attorney with Morgan Lewis, and his patent attorney colleague Liu Lijie attended a meeting with T&C partners Wang Qiuchao, Wang Lixin and Ye Zhijian. The two firms discussed the arrangements to present the patent seminars in Hangzhou.
摩根路易斯携手浙江天册 自去年八月份以来，美国摩根路易斯律师事务所便与本地事务所 积极合作，在多个城市举办专利研讨会。今年，浙江省最大的律 师事务所之一 —— 天册律师事务所将与摩根路易斯在杭州联合 举办专利研讨会，浙江的企业家们将从中大大获益。 三月份，摩根路易斯的合伙人兼高级专利代理人Robert Gaybrick和专利代理人刘莉婕到访天册，并与天册合伙人王秋潮、 王立新和叶志坚商讨合作事宜。 两所已达成一致，于今年四月份开始合作在杭州举办美国专利 及知识产权法律讲座，内容涉及中国企业防范知识产权法律风 险，在美国申请专利，美国专利在中国的许可实施和中国企业 购买美国专利等。
LONGAN SIGNS MEMORANDUM WITH HONG KONG FIRM Beijing-headquartered Longan Law Firm and Hong Kong firm Johnny KK Leung & Co have signed a memorandum of cooperation to take advantage of opportunities resulting from the economic integration of Hong Kong and the mainland. Under the memorandum, the two firms will exchange lawyers and cooperate on cross-border transactions and other legal issues. The two firms will investigate further ways to cooperate in the future to provide clients with high quality and efficient legal services. Johnny KK Leung & Co was founded in 1990 and advises on criminal, commercial and intellectual property matters as well as providing notary services.
隆安与香港律所联营 总部位于北京的隆安律师事务所与香港梁家驹律师行签署合作备 忘录，意欲充分利用香港与内地经济融合带来的绝佳机遇。 根据备忘录，两所可相互向对方办公室派驻律师，并在跨境交 易和法律事务方面进行通力合作。两所将在不远的未来进一步寻 求合作途径，以便为客户提供优质高效的法律服务。 梁家驹律师行成立于1990年，业务范围涵盖刑事、商业、知 识产权和公证服务。
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NEWS >>
ISSUE 5.4
Kaiwen Law Firm and Jingtian & Gongcheng also played integral roles advising the joint sponsors and underwriters on the CRG and CRCC IPOs respectively. In addition to the listing work, more business opportunities are set to follow. Yan said: “After the IPO, we are hoping to receive more mandates from the client in the areas of follow-on financing, M&A and outbound investment.”
Up to the challenge Although the ‘first A then H’ structure is an improvement on the flawed ‘A+H simultaneous’ listing adopted by ICBC and CITIC Bank in their IPOs, it is just as challenging, if not more so, than its predecessor. The spirit of the ‘first A then H’ listing is that the two listings occur fairly close together in time, so that they can be seen as a single offering and can therefore maximise the H-share pricing. To ensure the best timing, all legal advisors need to make sure their resources and expertise are up to the challenge. “Compared to simultaneous dual listings, in which Hong Kong and China regulatory bodies effectively ran the review processes in parallel and it was easy to coordinate with the two regulators, the ‘first A then H’ structure is a lot more challenging,” said Wong, whose firm also worked on the ICBC and CITIC Bank IPOs. “The review process of the A-share offering application by the CSRC starts earlier, and takes less time to approve than the H-share offering approval process of the Hong Kong Stock Exchange. The A-share offering easily races ahead of the H-share offering, and it could come to a point when the A-share offering application has gone so far that it becomes very difficult to change things to respond to the Hong Kong Stock Exchange’s questions.” The regulators in Hong Kong and China do have channels of communication, but they do not know exactly what is happening on the other side. It is up to the legal advisors to help both regulators understand the timing and issues, and lead them through the process to make sure that one does not leave the other behind. “The real challenge for us is to shorten the regulatory timetable in Hong Kong from the typical 10 to 12 weeks to five weeks, which we did successfully,” said Wong. Support from the Hong Kong Stock Exchange significantly contributed to the success of the transaction, as Wong noted that the Hong Kong regulator saw the ‘first A then H’ model is becoming a trend in terms of Chinese companies listing in Hong Kong. ALB
8
“先A后H” 上市模式成新潮
近
几个月来，国内外股市波动、震荡的局面使 得多家公司取消或延缓进行公开招股。在过 去两年股市繁荣时期大施拳脚的资本市场律师团队 在2008年或将度过一段较为平静的时期。 然而，近期成功发行的两宗“先A后H”铁路股IPO 为低迷的市况带来一则利好消息。 2007年12月，亚洲最大的建筑公司及世界第三 大建筑承包商——中国铁路股份有限公司(中铁)率 先采用‘先A后H’的模式上市，开香港联交所历史 中上市模式之先河，并通过首次公开发行成功筹集 55亿美元，成为2007年最大的A+H股上市项目。 在这一具里程碑意义的IPO之后仅三个月，中国铁 道建筑总公司(中铁建)便步其后尘，以同样模式在 沪港两地上市，筹得54亿美元。 “对于那些力图实现两地上市的国有企业，国家监管 机构已经尝试了不同的上市模式，从‘先H后A’、‘A+H 同时上市’ 到 ‘先A后H’”，参与了中铁首次公开招股 的嘉源律师事务所的管理合伙人颜羽表示，“国内监 管机构对最近的 ‘先A后H’ 上市模式持鼓励态度，因 为这样可使发行人能最大限度地降低国际和国内首 次公开招股的价差，同时强化A股市场。” 在项目过程中，颜律师与发行人和监管机构进行 了密切合作，她预测，那些希望在未来进行‘A+H’股 上市的国企将会普遍采纳这一新的模式，并且许多 公司将实现集团整体上市。 国际律师也在密切关注市场中出现的这一趋势。 富而德北京代表处的合伙人Christopher Wong在中 铁建首次公开招股中担任承销商法律顾问。Wong 指出，因为A股市场可获得更高估值，因此中国公 司仅在香港上市的必要性正在降低。 实际上，2007年仅有六只H股在香港主板上市， 相较于2006年的17只已大大减少，而且中信银行和 中铁等多家公司在香港的上市，不论是“A+H”同时上 市还是“先A或H”，均是为实现“A+H”股两地上市。 “中国一直鼓励优质公司在国内上市，提升A股市 场整体质量，这种趋势仍将继续，” Wong表示，“ 今后，对想在两地上市的公司来说，他们能够期望 的最好结果便是‘先A后H’上市模式。”
尽管官方并未明文规定，但目前人们普遍认为， 能够获准在H股上市的公司都将采用“先A后H”的模 式。据报道，中国太平洋保险集团(中国太平洋)和中国 南方机车车辆工业集团公司(中国南车)正计划在未来 几个月内采用“先A后H”的模式实现集团整体上市。
A股先行使国内律师获益 “先A后H”上市模式的初衷是为了能确保国内投资 者公平分享优质企业强劲发展带来的利润，并使国 内股市综合实力更为强大，发展更为健康。监管机 构的这一意图使得国内律所优先受惠于这一新模式 的实施。 由于大部分国企资产位于国内，受本法律 管辖，因此在重组、尽职审查、法律文件编制、A股 招股文件草拟、公司和合规问题，以及与所有相关 的监管部门联络和获取审批等方面，国内律师事务 所自然会被授予首要法律顾问的角色。 中铁首次公开招股项目就令嘉源律师事务所2007 年的业务收入增长了一倍，创造了骄人业绩。根据 中国律师协会(“中国律协”)的最新统计数字，以年度 业务收入计，嘉源在所有国内律所中名列第五。 颜羽表示，“通过参与中铁首次公开招股等多项引 人瞩目的交易，本所的收入和员工人数均实现大幅 增长。” 从重组开始直到于2007年12月成功上市，该 项目持续长达11个月。嘉源10逾名律师投入九个月 时间参与这一巨型企业的尽职审查和重组工作。 中国铁路工程总公司(中铁工)于2007年9月独家 发起设立中铁，作为其整体上市的平台。中铁工 在2006年的最后一天确定由嘉源担任上市项目中 国法律顾问。中铁工总部位于北京，拥有700逾家 子公司，22万逾名员工，业务领域广泛，涵盖勘 察设计、施工安装、制造研发、技术咨询、资本管 理以及外贸。 颜羽表示，“这一项目规模巨大，国资委对质量 控制的要求极为严格。交易错综复杂，需要本所投 入大量的资源和人力支持。”中国交通建设股份有 限公司(中交建)是中国最大的交通基建集团之一， 嘉源此前曾为其H股首次公开招股提供顾问服务。 中铁工和监管机构主要看中嘉源为中交建提供顾问
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服务的宝贵经验，并希望该所的专业团队能为首次“ 先A后H”上市铺平道路。 德恒律师事务所总部位于北京，拥有丰富的大型 国企重组和上市经验。而在中铁建首次公开招股项 目中，总部位于北京的德恒律师事务所担任发行人 的中国法律顾问。拥有丰富大型国企重组和上市经 验的德恒从而成为国内第二家在此“先A后H”上市模 式中获取丰厚利润的律所。 在中铁和中铁建首次公开招股中，凯文律师事务 所和竞天公诚律师事务所分别担任了承销商的中国 法律顾问，也发挥了不可或缺的作用。 在上市工作 完成后，更多的业务机遇仍将接踵而至，正如颜羽 所言：“首次公开招股后，我们有望在后续的融资、 并购和境外投资等方面接到更多的客户委托。”
充分准备，迎接挑战 虽然与中国工商银行和中信银行首次公开招股时 所采纳的“A+H”股同时上市相比有所改进，“先A后H” 的上市模式所面临的严峻挑战并不比前者少。 “先A后H”上市的关键之处在于，两地上市在时间 上非常接近，因此可被视为一次招股，并可使H股 的价格最大化。为把握最佳时机，所有法律顾问均
需确保自己在资源和专业能力上能够应对挑战。 Wong所在的律所也曾参与工商银行和中信银行 的首次公开招股，他表示，“如在两地同时上市， 香港和内地的监管机构同时高效进行审批工作，协 调两地机构较为容易。而“先A后H”模式则要复杂得 多。” “证监会对A股发售申请的审批开始较早，同 香港联交所审批H股发售的程序相比，所需时间也 较短。因此，A股发售申请程序很容易跑在H股前 面，这样两者就有可能在时间上相差太远，以至于 可能在需要根据香港联交所提出的问题进行某些变 更时遇到很大阻碍。” 尽管香港和内地的监管机构 之间存在沟通渠道，但他们并不确切知悉对方正在 进行的工作内容。因此，需要依赖法律顾问来协助 两地的监管机构及时了解时间安排和各项事宜，促 进两地审批工作协调、顺利进行。 Wong表示，“我们面临的真正挑战在于，使香港 监管机构的审批时间从通常的10至12个星期缩短至5 个星期，在这个项目里我们做到了这一点。” 香港联交所的支持对于两个项目的成功也起了举 足轻重的作用，正如Wong所说，香港的监管机构已 经认识到，对于中国企业在香港上市而言，“先A后 H”模式是大势所趋。
A-SHARE IPO PERFORMANCE LATEST SHARE PRICE HIGHLIGHTS (AS OF 7 APRIL) • Companies which listed on domestic exchanges last year had an average increase of 113.6% in their share prices as of 7 April. One out of the 124 companies posted a negative performance. DEBUT PRICE HIGHLIGHTS (AS OF 7 APRIL) • All 22 A-share IPOs listed this year had registered positive performance by 7 April, posting an average increase of 94.1%. • Debut performance for A-share IPOs year to date averaged at 194.5%. In the previous year, the debut average of A-share IPOs was at 183.3%. • The 22 companies which had A-share IPOs year to date raised US$7.6bn in proceeds – a decrease of 36.6% from the US$12.1bn raised in the same period last year. SHANGHAI A-SHARE IPO STATISTICS
Debut Trade date 2006 2007 2008 ytd
Positive performance Negative performance Average performance (%) 57* 8 55.6 121 3 183.3 22 0 194.5
Trade date 2006 2007 2008 ytd
Positive performance Negative performance Average performance (%) 63 2 151.1 123 1 113.6 22 0 94.1
Performance
* One IPO debut price was unchanged from offer price (Air China IPO)
SHANGHAI A-SHARE IPOS – PROCEEDS RAISED (US$m) Trade date 2008 ytd Same period 2007 Year on year change (%) Full year 2007 Full year 2006 Source: Thomson Financial
>> NEWS >>
RENMIN UNIVERSITY MOOTERS WIN CHINESE JESSUP CHAMPIONSHIP A team of students from Renmin University has won the Chinese national championships of the Philip C Jessup International Law Moot Court Competition (Jessup), defeating the rival team from Xiamen University in the regional final. China University of Political Science and Law and Southwestern University of Finance and Economics shared third place. Sponsored by White & Case, Fangda Partners, Lovells and the Wang Family Foundation, the Chinese Jessup competition, now in its sixth year, was held at Renmin University in Beijing.
人大赢得Jessup辩论赛中国区冠军 来自人民大学的代表队在Philip C. Jessup 国际法模拟法庭辩论赛 区域总决赛中战胜厦门大学代表队，夺得全国冠军。中国政法大 学和西南财经大学并列第三名。 人民大学举办的此项全国选拔赛由美国伟凯律师事务所、方达 律师事务所、路伟国际律师事务所和王氏基金会提供赞助。于2月 底在北京举行的本次选拔赛已是第六届赛事，吸引了全国28所大 学参赛。裁判小组由27名国际法专家组成。 位居前两名的中国代表队将参加4月6日至12日在华盛顿举办的 全球Jessup辩论赛。Philip C. Jessup 国际法模拟法庭辩论赛是一项 国际辩论赛，参赛选手在国际模拟法庭前进行口头和书面答辩。
MALLESONS HELPS AIRWAYS BECOME GREENER Mallesons Stephen Jaques has advised Cathay Pacific Airways and its sister airline Dragonair on a global carbon offset program, the first to be launched by an Asian airline. The FLY greener program allows passengers to voluntarily pay to offset carbon dioxide emissions generated by their flight using cash or frequent flyer miles. The offset payments are used by the airlines to purchase carbon credits generated by projects that reduce greenhouse gas emissions. Mallesons assisted Cathay Pacific Airways and Dragonair with the development and implementation of the carbon offset program. Climate change and clean energy partner Christopher Tung led the Mallesons team on the project.
万盛协助绿色航空行动启航
Proceeds (US$m)
Deals 7,647 12,053 -36
22 30
64,617 16,937
124 65
澳大利亚万盛国际律师事务所就全球碳抵消计划向国泰航空和 港龙航空提供法律顾问服务。该计划是亚洲航空公司首次推出 的碳抵消计划。 名为「FLY greener」的碳抵消计划使乘客自愿选择使用现金 或飞行常旅里程，抵消其飞行过程中产生的二氧化碳排放。航空 公司将把抵消款项有效地用于购买碳信用额，以资助联合国认证 的减排项目及发展中国家进行的洁净能源计划。 万盛协助国泰航空和港龙开发及实施此项碳抵消计划。气候 变化和清洁能源合伙人Christopher Tung 是万盛团队中该项目 的负责人。
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NEWS >>
ISSUE 5.4
► XINYUAN REAL ESTATE IPO & NYSE LISTING
| CHINA/AUSTRALIA |
US$282m
► SINOSTEEL BID FOR MIDWEST
The first China property developer to be listed on the NYSE
Value: A$1.2bn
Firm: Baker & McKenzie Lead lawyers: Scott Clemens, Omer Ozden Client: Issuer on US law
Firm: Deacons Lead lawyers: Ian McCubbin, Shaun McRobert, James Stewart Client: Sinosteel Firm: Hardy Bowen Lead lawyer: Michael Bowen Client: Midwest
Firm: Shearman & Sterling Client: Underwriters on US law
Shaun McRobert, Deacons
Firm: TransAsia Lawyers Client: Issuer on PRC law
The first hostile takeover bid by a Chinese firm for an Australian company
Firm: King & Wood Client: Issuer on PRC law
• SOE Sinosteel Corporation is the largest iron ore trading company in China
Firm: Maples & Calder Lead lawyers: Richard Thorp, Alice Ooi Client: Issuer on Cayman Island law
• Sinosteel ignored a call by its James Stewart, target on 19 March to raise the Deacons A$5.60-a-share bid to at least A$7 a share, valuing Midwest at A$1.49bn
• Listing makes Xinyuan the first China property developer to be listed in the US; introducing China’s fast-growth property sector directly to US investors for the first time
• Midwest said the current offer undervalued the strategic and intrinsic value of its five projects in Western Australia
• Deal involved complex negotiations with pre-IPO private equity investors, Blue Ridge China and Equity International, and significant debt financing Firm: Commerce & Finance Client: Underwriters on PRC law • H-listing was concurrent with the Rule 144A/ Regulation S global offering of Honghua Group • The company sold 25% of its enlarged share capital, or 833.36 million shares • The 70% institutional tranche was more than 11 times covered, while the retail tranche attracted about 28 times the number of shares on offer • This triggered a partial clawback that boosted the size of the retail tranche from 10% to 30% of the total • The Herbert Smith team recently advised on $US21.9bn IPO of ICBC; one the largest ever IPOs
| CHINA/HONG KONG | | CHINA/US |
► HONGHUA GROUP LISTING U$S410m
► MOTOROLA INC ASSET ACQUISITION
World’s second largest onshore oil rig manufacturer H-lists
Motorola diversifies its interests on the mainland Firm: Paul Weiss Rifkind Wharton & Garrison Lead lawyer: Jeanette Chan Client: Acquirer on international law
Firm: Arculli Fong & Ng Client: Issuer on HK law Firm: Latham & Watkins Client: Issuer on US law
Frances Woo, Appleby
Firm: King & Wood Client: Issuer on PRC law
Firm: Herbert Smith Lead lawyers: Gary Lock, Kevin Roy Client: Underwriters on HK & US law
Firm: Jun He Client: Acquirer on PRC law Firm: AllBright Client: Target on PRC Law • Motorola acquired the assets related to digital cable set-top products of Zhejiang Dahua Digital Technology Co, Ltd and Hangzhou Image Silicon (collectively, Dahua Digital)
Firm: Appleby Lead lawyers: Li Lee Tan, Frances Woo Client: Issuer on Cayman law
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Scott Clemens, Baker & McKenzie
Kevin Roy, Herbert Smith
• Dahua Digital is a privately held developer, manufacturer and marketer of cable set-tops and related low-cost integrated circuits for the emerging Chinese cable business
► MINDRAY MEDICAL ACQUISITION OF DATASCOPE US$202m Firm: O’Melveny & Myers Lead lawyers: Gregory Puff, Victor Chen, Larry Sussman, Pete Ritter, Ted Kassinger Client: Mindray on US, PRC law Firm: Dechert Lead lawyers: Adam Fox, Martin Nussbaum Client: Datascope on US, PRC law
Gregory Puff, O’Melveny & Myers
• Transaction will create, upon completion, the third-largest player in the global patient monitoring device industry • Transaction represents a unique combination of strengths that will help transform Mindray from a largely China-based company into a global leader
| CHINA/SINGAPORE | ► CHINA HUANENG GROUP ACQUISITION OF TUAS POWER US$3.1bn Largest ever overseas acquisition by a Chinese power company Firm: Shook Lin & Bok Lead lawyers: Phillip Pillai, David Chong, Michelle Phang Client: Acquirer on Singapore law Firm: Clifford Chance Lead lawyer: Ting Ting Tan Client: Financier (BOC) on Hong Kong law Firm: Sullivan & Cromwell
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YOUR MONTH AT A GLANCE Lead lawyer: Wei Chun Client: Acquirer on International law Firm: Haiwen & Partners Client: Acquirer on PRC law
Firm AllBright Allen & Gledhill Allen & Overy
Jurisdiction China, US China, Singapore Belgium, China
Allens Arthur Robinson Appleby
China
Hong Kong
• Temasek, owner of Tuas Power, has made no secret of its desire to divest all of its wholly-owned power generation assets in Sinagpore; this deal is the first big move in this direction • Temasek announced China Huaneng Group as the successful bidder in a press release on 14 March 2008 • Huaneng also owns a 50% stake in the Australian power generation joint venture company, OzGen, and is also the controlling shareholder of Huaneng Power International, Inc, which is listed on the New York, Hong Kong, and Shanghai stock exchanges
Arculli Fong & Ng Baker & McKenzie Beijing Deheng Castillo Laman Chui & Partners
Clifford Chance
Commerce & Finance
| CHINA/HONG KONG | ► WANT WANT IPO US$1.05bn Second largest offering of 2008 to date Firm: Freshfields Bruckhaus Deringer Lead lawyers: Kay Ian Ng, Stuart Grider, Claude Stansbury, Bruce Cooper Client: Issuer on HK, US law Firm: O’Melveny & Myers Lead lawyers: Colin Law, Peter Chen, Kurt Berney Client: Underwriters on HK, US law Firm: Maples & Calder Lead lawyer: Greg Knowles Client: Issuer on Cayman Islands law Firm: Lee and Li Lead lawyer: Joyce Fan Client: Issuer on ROC law Firm: Jun He Lead lawyer: Shi Tiejun Client: Issuer on PRC law Firm: Jingtian & Gongcheng Client: Underwriters on PRC law
Shi Tiejun, Jun He
• Want Want is a leading food and beverage manufacturer in China, well known for its rice crackers and other snack food products • Prior to HK listing, Want Want was listed on the Singapore Stock Exchange for some 10 years before being delisted and taken private by its chairman in September 2007 • Company is offering 2.7 billion shares at HK$3 each. The shares sold represent 20.5% of the company's enlarged share capital • Prior to the global offering, the company underwent a restructuring to spin-off certain non-core businesses, and focus on its core food and beverage businesses
Conyers Dill & Pearman
Davis Polk & Wardwell Deacons
China, Hong Kong, US China, Hong Kong, US, China, Hong Kong, Singapore China, Hong Kong, US China, Singapore China
China, Hong Kong, US Australia, China Australia, Hong Kong, China Dechert China, US Dorsey & Whitney China, Hong Kong, US China, Hong Kong, US Australia, Hong Kong, China Freshfields Hong Kong, Japan Freshfields China, Hong Kong, US Bruckhaus Deringer China, Hong Kong, US China, Hong Kong, US Garrigues China, Spain Graubard Miller Guangdong Guangda Haiwen & Partners
China, US China, Hong Kong, Singapore China, Singapore
Hardy Bowen Heller Ehrman
Australia, China China
Herbert Smith Jingtian & Gongcheng
China, Hong Kong China, Hong Kong, Singapore China, Hong Kong, US China, Hong Kong, US China, Hong Kong, US China, Singapore China, US China, Hong Kong, US China, US China, US China, Hong Kong China, Hong Kong, US, China, US China, Hong Kong, Singapore
Jun He
Kim & Chang King & Wood
Kirkpatrick & Lockhart Preston Gates & Ellis Latham & Watkins Lee & Li Linklaters Mallesons Stephen Jaques Maples & Calder
China, Hong Kong China, Hong Kong, US China, Hong Kong, US China, Singapore Hong Kong, Philippines, UK Hong Kong China, US Hong Kong, UK
• As part of the deal, Want Want and its controlling shareholder repaid and discharged financing arrangements incurred in connection with privatisation • Freshfields is the only firm to have worked on both of the Hong Kong IPOs in the billion-dollar category for the first quarter of 2008
China, Hong Kong, US Hong Kong China, Hong Kong, US China, Hong Kong, US China, US China, Hong Kong, US China, Hong Kong Hong Kong, Philippines, UK China, Hong Kong, Singapore China, Singapore Hong Kong,, Japan China, Singapore
Mayer Brown JSM Morrison & Foerster
China, Hong Kong, US China, Hong Kong, US, China, US China China, Hong Kong, US
Deal name Motorola Inc Asset Acquisition Evraz Group acquisition in Delong Holdings PingAn acquisition of interest in Fortis Investment Management Airport Authority of Hong Kong Franchise to Cathay Pacific Services Fresenius Kabi (China) acquisition of COSCO Pharm Honghua Group IPO Asia International Standard Group rights issue Honghua Group IPO China Railway Construction Corporation IPO Xinyuan Real Estate IPO and NYSE Listing China Railway Construction Corporation IPO Fujian Casstech Crystals IPO International Finance Corporation & Asian Development Bank financing Xingfa IPO
US$m Undiscl. 770 3,350
Practice M&A M&A Private equity, M&A Est. 618 Building & construction Undiscl. M&A 410 84 410 5,400 282 5,400 53 1,100
Equity Equity Equity Equity Equity Equity Equity Project finance Est. 58 Equity
Li Heng Chemical Fibre Technologies IPO Permira Acquisition of Arysta LifeScience Corp China Huaneng Group Acquisition of Tuas Power Honghua Group IPO Evergrande IPO Xingfa IPO
Est. 232 Equity 2,002 M&A 3,000 M&A
Solargiga IPO Li Heng Chemical Fibre Technologies IPO China Investment Corporation Investment in Morgan Stanley Wingfat IPO Sinsosteel bid for Midwest Sino Gold acquisition of Golden China Resources Corporation Mindray takeover of Datascope Solargiga IPO Wingfat IPO Sino Gold acquisition of Golden China Resources Corporation Permira Acquisition of Arysta LifeScience Corp China Railway Construction Corporation IPO Evergrande IPO Want Want IPO Fersa Energias Renovables investment in & JV with Lubei Group Corporation North Asia Investments IPO & NYSE listing Xingfa IPO
Est. 127 Equity Est. 232 Equity 5,000 FDI, M&A
China Huaneng Group Acquisition of Tuas Power Sinosteel bid for Midwest Yuhe Poultry reverse takeover & private capital raising Honghua Group IPO Xingfa IPO
410 Equity 2,100* Equity Est. 58 Equity
Est. 12* Equity Est. 1,200 M&A 97 M&A 202 Est. 127 Est. 12* 97
M&A Equity Equity M&A
2,002 5,400 2,100* 1,048 95
M&A Equity Equity Equity M&A, Energy & resources Est. 115 Equity Est. 58 Equity 3,000 M&A Est. 1,200 M&A 21 Equity, M&A 410 Equity Est. 58 Equity
Solargiga IPO China Railway Construction Corporation IPO Want Want IPO Li Heng Chemical Fibre Technologies IPO Motorola Inc. Asset Acquisition Want Want IPO North Asia Investments IPO & NYSE listing North Asia Investments IPO & NYSE listing Honghua Group IPO Evergrande IPO Xinyuan Real Estate IPO and NYSE Listing Xingfa IPO
Est. 127 5,400 1,048 Est. 232 Undiscl. 1048 Est. 115 Est. 115 410 2,100* 282 Est. 58
Honghua Group IPO Solargiga IPO Want Want IPO Evraz Group acquisition in Delong Holdings International Finance Corporation & Asian Development Bank financing IFIL Group investment in Vision Investment Management Limited Xinyuan Real Estate IPO and NYSE Listing Asia Alternative Asset Partners (Caymans) Ltd First closing Want Want IPO Evergrande IPO North Asia Investments IPO & NYSE listing Shui On Land Land use rights Solargiga IPO
410 Est. 127 1,048 770 1,100
Equity Equity Equity Equity M&A Equity Equity Equity Equity Equity Equity Equity
Equity Equity Equity M&A Project finance 90 M&A
282 Equity 200 Equity 1,048 2,100* Est. 115 1,060 Est. 127
Equity Equity Equity Real estate Equity
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NEWS >>
ISSUE 5.4
ANALYSIS
Withdrawn deals signal hard times ahead
The US sub-prime crisis is having a diverse range of global effects. In Asia, it is loss of profit through the withdrawal of deals
A
s the sub-prime mortgage crisis sends the US economy sliding into recession, Asia’s capital markets have experienced a series of withdrawn deals early in the year, indicating the resilience of the region’s markets may not last indefinitely. Asia had recorded US$17.9bn worth of withdrawn M&A deals at the time ALB China went to press. This was half the size of the completed M&A deals in the region (US$36.3bn). Withdrawn IPO volumes totalled US$14.3bn from 14 deals – larger than those launched so far this year in the region, according to Thomson Financial. Asia (ex-Japan) IPO volumes totalled US$11.7bn from 66 deals. A number of IPO deals from India accounted for the majority of withdrawn issuances, as the Mumbai market suffered. These were BSNL, Emmar-MGF, DLF Office Trust and Unitech Office Trust.
The IPO trend followed on from last year’s tentative approach to Asian markets, which resulted in 22 IPO deals in Asia-Pacific (ex-Japan) being cancelled or postponed, with an estimated combined value of US$5.8bn. Seventeen of these equity deals were pulled in the second half of last year as the credit crisis started to take effect in the region. William Barron, partner with Davis Polk & Wardwell, said he has noticed the growing capital markets trend, particularly on the debt side. “Beginning last July or August, when the sub-prime problem started to develop, a lot of deals were pulled or put on hold due to difficult market conditions, mainly debt deals,” Barron said. “In fact, some of them went right through roadshows and didn’t go ahead. Some equity deals were also pulled from the market after getting quite far along.”
WITHDRAWN IPOs 2008 Asia-Pacific (ex Japan) cancelled/postponed IPOs Issue date totals Full year 2006 Full year 2007 So far 2008 Source: Thomson Financial
12
Proceeds (US$m)
Asia-Pacific (ex Japan) IPO volumes
Number of issues Issue date totals
Proceeds (US$m)
Number of issues
10,921
48
Full year 2006
85,184
515
5,787
24
Full year 2007
92,809
636
14,637
14
So far 2008
11,656
66
The capital markets teams of law firms in the region, that have been stretched thin during the market boom, may be set for some quieter times in 2008. While lawyers are often entirely in the client’s hands William Barron, in terms of ensurDavis Polk & Wardwell ing these deals go to market, and can only ensure clients are ready for listing, deals being pulled will hurt law firm profits. “It really varies from deal to deal, and depends on the relationship and what’s been negotiated with a client,” Barron said. “It’s fair to say, though, that it’s difficult to get paid a good fee if the deal doesn’t end up going ahead.” Barron said he has not noticed the credit crunch effect on the pipeline of M&A deals in the region. “On the M&A side, you’re continuing to see a lot of activity; from our perspective, that hasn’t been affected at all,” he said. “This is because most of the M&A deals out here aren’t as dependent on leverage as much as in the US, for example, so they’re continuing to go ahead.” Davis Polk has a string of M&A deals lined up, and is currently representing Linktone, a Nasdaq-listed company with operations in the PRC, in connection with its acquisition by Media Nusantra Citra, an Indonesian company. Davis Polk’s Jeffrey Small also represented Morgan Stanley in connection with China Investment Corporation’s US$5bn investment in the bank. As for the future of capital markets deals, Barron is philosophical. “I’ve been here 15 years and three or four market cycles, and the markets get turbulent at times.” Taking a long-term view, Barron said the sub-prime-induced situation so far in Asia has not been as bad as after the Asian financial crisis, the .com bust or the SARS scare. “Eventually, it will be likely to have a more significant effect out here than it’s had up until now. It’s been encouraging how strong it’s been out here given what’s happening in the US, but sooner or later it will have an effect,” Barron said. Expect lawyers to become a lot more aggressive in their approach to sourcing deals if and when the market takes a dive. ALB
>> NEWS
www.asianlegalonline.com
| CHINA/SINGAPORE | YOUR MONTH AT A GLANCE (CONT)
► LI HENG IPO
Firm O'Melveny & Myers
US$230m
Orrick Herrington & Sutcliffe
Firm: Rajah & Tann Lead lawyers: Wong Kok Hoe, Howard Cheam Client: Issuer on Singapore law
China, Egypt Paul Hastings Janofsky & Walker Paul Weiss Rifkind Wharton & Garrison Rajah & Tann
Firm: Jingtian & Gongcheng Client: Issuer on PRC law Firm: Chiu & Partners Client: Issuer on HK law
Jurisdiction China, US China, Hong Kong, US Hong Kong
Wong Kok Hoe, Rajah & Tann
Firm: Conyers Dill & Pearman Client: Issuer on Bermudan law Firm: Wee Woon & Hong Client: Underwriters on Singapore, PRC law • Deal saw listing of Li Heng on the Main Board of the Singapore Securities Exchange Trading Limited and its initial public offering (“IPO”) in Singapore • IPO was made by way of an invitation in respect of 400 million ordinary shares of Li Heng at S$0.10 each, comprising 340 million New Shares and 60 million Vendor Shares by way of public offer and placement of 10 million Offer Shares at S$0.80 and 390 million Placement Shares at $0.80 respectively
| CHINA/BELGIUM | ► PING AN – FORTIS INVESTMENTS ACQUISITION & JV US$3.35bn Firm: Allen & Overy Lead lawyers: Gary McLean, Alistair Asher Client: Target, JV Partner on PRC, Belgian law Firm: White & Case Lead lawyers: Seung Chong, Stefan Odeurs Client: Acquirer, JV Partner on PRC, Belgian law
Richards Butler Shearman & Sterling Shin & Kim Shook Lin & Bok
China, Hong Kong, US China China, US Hong Kong China, Hong Kong, Singapore China, Singapore China, Hong Kong, US China, US
Sidley Austin
Stephenson Harwood & Lo Stikeman Elliot
Est. 12* 100 Undiscl. 90
Equity Debt market M&A M&A
Est. 58 Equity
Est. 115 Equity 3000 M&A
282 Equity 133 Equity Undiscl. M&A
Hong Kong, UK China, Singapore China, Hong Kong, US
Xinyuan Real Estate IPO and NYSE Listing China Corn Oil NYSE Euronext Listing Sinochem International Corporation acquisition from Monsanto Corporation Li Heng Chemical Fibre Technologies IPO PingAn acquisition of interest in Fortis Investment Management International SOS & Control Risks Group JV Evraz Group acquisition in Delong Holdings Wingfat IPO
China, Hong Kong China, Hong Kong , US
Wingfat IPO Solargiga IPO
Est. 12* Equity Est. 127 Equity
China, Hong Kong, US China, Hong Kong, US, China, Hong Kong, Japan
China China, Singapore
Withers Wong Partnership Woo Kwan Lee & Lo Yuan Tai Zong Heng
750 M&A
North Asia Investments IPO & NYSE listing China Huaneng Group Acquisition of Tuas Power Solargiga IPO Evergrande IPO CRE Beverage Trading Limited dual currency loan facility Asia International Standard Group rights issue Vitasoy acquisition of Unicurd Food Sino Gold acquisition of Golden China Resources Corporation Goldman Sachs Developing Markets Real estate funds bond acquisition China Investment Corporation Investment in Morgan Stanley YIHE Real Estate Holdings Ltd CB issue China Huaneng Group Acquisition of Tuas Power International Finance Corporation & Asian Development Bank financing
China
SyCip Salazar Hernandez & Gatmaitan TransAsia Lawyers Taylor Wessing Watson Farley & Williams Wee Woo Hong White & Case
Practice 202 M&A 1,048 Equity 90 M&A
Est. 232 Equity Est. 127 Equity 282 Equity
Hong Kong Hong Kong, Singapore Australia, Hong Kong, China China
Sullivan & Cromwell
US$m
Li Heng Chemical Fibre Technologies IPO Solargiga IPO Xinyuan Real Estate IPO and NYSE Listing
China, US China, Singapore
Slaughter and May
Deal name Mindray takeover of Datascope Want Want IPO IFIL Group investment in Vision Investment Management Limited COSCO Pacific Ltd purchase of stake in Suez Canal Wingfat IPO YIHE Real Estate Holdings Ltd CB issue Motorola Inc. Asset Acquisition IFIL Group investment in Vision Investment Management Limited Xingfa IPO
Hong Kong, UK China, US China, France China, Pan Asia China, Singapore Belgium, China
Est. 127 Equity 2,100* Equity 232 Debt market 84 Equity 50 M&A 97 M&A 100 Equity 5000 FDI, M&A 100 Debt market 3,000 M&A 1,100 Project finance
Est. 232 Equity 3,350 Private equity, M&A n/a M&A 770 M&A Est. 12* Equity
* IPO has been withdrawn
REST OF ASIA
Seung Chong,
• Deal will create a global asset White & Case management partnership between Fortis and Ping An Insurance (Group) Company of China Ltd • Ping An intends to acquire a 50% equity stake in Fortis Investments, the global asset management arm of Fortis, for a consideration of €2.15bn • Partnership will significantly advance Ping An’s strategy to establish a global asset management business and a Qualified Domestic Institutional Investor (“QDII”) platform while Fortis will significantly accelerate the development of its business in both China and Asia-Pacific
• According to the Memorandum of Understanding, Fortis Investments would be re-branded “Fortis Ping An Investments”
Firm Allen & Overy
Jurisdiction Philippines
Bae Kim & Lee Bonelli Erede Pappalardo Cleary Gottlieb
Korea Italy, Singapore, UK, US
Elvinger Hoss & Prussen Linklaters Lovells Loyens & Loeff Mallesons Stephen Jaques
Italy, Singapore, UK, US
Maples & Calder Nagashima Ohno Tsunematsu Simmons & Simmons Sullivan & Cromwell SyCip Salazar Hernandez & Gatmaitan
Deal name Republic of Philippines issuance of Debt Exchange Warrants Halla Consortium share purchase GIC Investment in Sintonia SA
US$m Practice 2,000 Debt market
Republic of Philippines issuance of Debt Exchange Warrants GIC Investment in Sintonia SA
2,000 Debt market
770 1,500 1,500 1,100
Cayman Islands, Hong Kong, United Kingdom Japan, United States
Evraz Group acquisition in Delong Holdings GIC Investment in Sintonia SA GIC Investment in Sintonia SA International Finance Corporation & Asian Development Bank financing Cathay Pacific Airways & Dragonair global carbon offset initiative Asia Alternative Asset Partners (Caymans) Ltd First closing TPG Investment in and JV with NIS group
Qatar
Ras Abu Fontas A1 desalination project
Italy, Singapore, UK, US
GIC Investment in Sintonia SA
650 Project finance 1,500 Equity
Hong Kong, Philippines, United Kingdom Philippines
International Finance Corporation & Asian Development Bank financing Republic of Philippines issuance of Debt Exchange Warrants
Philippines
China, Singapore Italy, Singapore, UK, US Italy, Singapore, UK, US Hong Kong, Philippines, UK Singapore, Malaysia
763 M&A 1,500 Equity
1,500 Equity M&A Equity Equity Project finance n/a Project advice
200 Equity 288 M&A
1,100 Project finance 2,000 Debt market
Does your firm’s deal information appear in this table? Please contact Renu Prasad
renu.prasad@keymedia.com.au
61 2 8437 4763
13
FIRM PROFILE
ISSUE 5.4
Tian Yuan: where aspirations meet opportunities
W
ith more than 120 legal practitioners, 35 of whom are partners, Tian Yuan Law Firm services an impressive array of leading domestic and international corporations, state-owned enterprises and government departments. Headquartered in the heart of Beijing’s Financial Street, the firm is enjoying a growing reputation in all commercial areas. What have set Tian Yuan apart for over 16 years and become a model for the modern practice of law in China is Tian Yuan’s priority on people, culture and organic growth. The firm prides itself on this, and has been named “employer of choice in China” in ALB’s recent survey of over 15,000 lawyers across 13 Asian jurisdictions. Tian Yuan’s approach has proven to be successful and reinforces its
FIRM PROFILE
“The strong centripetal al force in the firm m ensures that we have a unified culture, ulture, and a high consistency nsistency of service e and quality”
天
元律师事务所总部位于北京金融街中 心地带，拥有逾120名执业律师，其 中35位为合伙人。其服务客户包括众 多国内外知名公司、国有企业和政府部门。始终 致力于提供卓越服务的天元如今在各个商业领域 声名鹊起。 令天元引以为荣的是，自1992年成立以来，事 务所便坚持以人为本，强调企业内部文化建设的 发展战略。天元致力于为倾心投入工作的高素质 律师提供实现抱负的机会，也因此在业界内脱颖 而出，成为现代法律服务业的典范。在《亚洲法 律杂志》最近对亚洲13个司法管辖区内的15,000 多名律师所作的一份调查中，天元被评为“中国最 佳雇主”之一。 “16年来，天元建立了一支非常稳定的合伙人和 律师团队，”天元合伙人刘艳表示，“我们深知稳 定的团队是保证为客户提供高品质法律服务和维 持长期客户关系的根本。同时，我们为年轻有为 的律师提供最好的培训机会和可供使用的资源， 并对他们敞开通向成为合伙人的大门。”
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leading position in the marketplace. “We believe our stable team of first-class lawyers has fundamentally contributed to Tian Yuan’s consistent highest quality legal advice and representation to clients. Towards attracting and keeping stay the very best talents, we provide best training and accessible resources, and avail the senior associates clear path to the partnership.” The firm creates an environment in which opportunities serve the aspirations of well-qualified and motivated lawyers. Its real investment in people has won the loyalty of its associates and partners, enabled the creation of long-term working relationships with clients and brought more mandates from clients. “The strong centripetal force in the firm ensures that we have a unified culture, and a high consistency of service and quality,” says Liu. “This is what’s driving the firm’s fast growth, and our clients
benefit greatly from it.” While the firm grows alongside the toughest of competitors in Beijing and Shanghai, it is set apart by its people focus, the accessibility of its partners and its client service standards.
事务所对人才进行的实实在在的投入赢得了同 事和合伙人对天元的忠诚度和对工作的责任心， 合 的忠 作的 使得他们能够与客户保持长期稳定的合作关系， 并赢得更多委托业务。 “事务所强大的凝聚力确保我们在内部能拥有统 一的文化、在外部能为客户提供始终如一的高品 质服务”，刘艳表示，“这是推动事务所飞速增长 的动力所在，我们的客户从中大大受益。” 尽管北京和上海高端法律服务市场竞争激烈、 强手如林，天元仍凭借以人为本、合伙共事的企 业文化及卓越的客户服务不断巩固其市场翘楚的 领先地位。
务过的客户包括中国铝业、中国长江电力、中 国五矿、鞍钢集团、北京国有资产经营有限公 鞍 有 产 有 司、中国中化集团、华润集团、联想、海尔、北 京首都国际机场股份有限公司和新东方教育科 技集团等。 每一位客户的成功都是天元团队开拓创新、 致力寻求最佳解决方案而取得的成就。例如，造 价高达213亿美元的三峡工程发电站的经营者中 国长江电力，是首家根据2007年8月证监会颁布 的新规则发行公司债的企业；中国铝业收购云南 铜业集团控股权是中国有色金属业内迄今为止最 大的收购案。 “我们参与的许多项目都是同类交易里的第一 单，没有先例可循，因此客户要求我们发挥创新 精神，并严格把握交易架构以及合规等方面的问 题，”刘艳表示，“我们的竞争优势在于对中国法 律的深刻理解和积极进取的工作态度。” 在公司法和投融资领域树立强势地位的同时， 天元在诉讼和纠纷解决方面的业绩也备受赞誉。 诉讼团队由合伙人李琦领导，曾参与多项复杂的
2007 业绩不凡 天元自成立以来在保持律师团队稳步增长的同 时，实现了业务收入的快速增长。2006和2007年 两年中每年收入的增长都超过了40％。 天元的公司法业务团队多年来屡创佳绩，知 名度在广大国企，民企以及跨国公司之间不断 提升，并在业内建立了良好口碑。该团队曾经服
Stellar performance in 2007 The firm’s corporate advisory team has excelled itself over the years by commanding an increased share of instructions from leading state-owned and private enterprises, including clients such as Chinalco, China Yangtze Power, China Minmetals, Ansteel Group, Beijing Stateowned Assets Management, Sinochem Corp, China Resources Group, , Lenovo, Haier, Beijing Capital International Airport Company, and New Oriental Education & Technology Group. etc. “Many of the transactions we acted on have been the first of their kinds. As there were no precedents, clients have required
FIRM PROFILE
www.asianlegalonline.com
天元：以人为本，以质为先
A growing family In a very tight legal talent market, the firm has managed to keep ahead of its competition by using its enviable working culture to attract new partners and best law school graduates, while a substantial 大型诉讼案例。该团队在知识产权保护方面的优 势力量已引起了客户和同行们的特别关注。 目前，该团队在北大方正电子有限公司与美国 暴雪（Blizzard）公司知识产权侵权纠纷案件中代 表北大方正电子有限公司。该案件索赔金额超过1 亿元人民币，由北京市高级人民法院审理。
人才队伍日渐壮大 虽然当今市场资深法律人才匮乏，但是天元通 过营造令人钦羡的工作环境和律所文化吸引了一 批新合伙人和一流法律院校的毕业生。同时通过 多项内部晋升计划，强化合伙人团队，从而在激 烈的竞争中保持优势地位。 在八名新合伙人中，有两名将在上海分所工
number of internal promotions have strengthened its partnership traditions. Two of the eight new partners were appointed for the firm’s newly upgraded Shanghai office located in the Bank of China Tower. Zeng Xi joined Tian Yuan Shanghai from Zhonglun , and Wang Bangmin, former Assistant General Counsel of American Standard Companies in Asia PacificseniorBASF, gave up his inhouse career to practise with Tian Yuan. The new hires are set to sustain the firm’s remarkable growth of corporate and foreign investment practice in Shanghai. The influx of new lawyers and partners has expanded the diversity of the practice and experience . This has been mirrored in the firm’s client activity by its winning of the role of adviser to Minmetals Development’s US$242m project in Brazil and to the logistics services for the Airbus A320 final assembly line project in Tianjin. International trade specialist Chai Jie was promoted to the partnership last year. 作，在加盟天元前，曾曦曾为中伦金通合伙人， 而王邦民曾为美国美标公司亚太区助理法律总 监。这两位新合伙人无疑将推动天元上海业务的 快速增长。 刘艳表示，“曾曦 和 王邦民均在外商投资和并 购领域拥有丰富的实践经验。他们将与资深上海 合伙人徐萍一起，负责上海分所的业务发展，使 之成为本所国际化战略的实施中心。” 随着新律师和合伙人的不断加盟，天元的业务 领域和专业知识也随之走向多元化。该所最近赢 得了五矿发展股份有限公司的项目顾问一职，负 责该公司在巴西价值2.42亿美元的工程项目，并 获得委任为天津空中客车A320总装线项目物流 服务提供法律意见。
2007年取得的辉煌成就 交易/项目
客户
价值
执业领域
首席合伙人
晶澳太阳能纳斯达克首次公开发售及二次发售并上市
晶澳太阳能
4.50亿美元
证券
刘艳、徐萍
中国长江电力发行公司债并于上海交易所上市
中国长江电力
超过10亿美元
证券
刘艳、陈华
方兴地产（中国）有限公司（中国中化下属的房地产企业）全球发售 方兴地产（中国） 及香港首次公开发售
4.24亿美元
证券
朱小辉
太平洋网络全球发售及香港首次公开发售
太平洋网络
1.21亿美元
证券
李方, 朱小辉
中国铝业收购云南铜业集团控股权
中国铝业
超过10亿美元
并购
朱小辉、宋皓
华润收购家世界连锁超市有限公司
华润
并购
朱小辉、宋皓
丰益国际有限公司并购七十多家中国境内的外商投资企业
丰益国际有限公司
16亿美元
并购
徐萍、吴冠雄
五矿发展与Gerdau Acominas SA就巴西重大钢铁项目签订供应合同
五矿发展
超过2.3亿美元
国际贸易
柴杰
超过1亿美元
国际贸易
柴杰
并购
任燕玲 曹程钢
五矿发展以及中冶集团与Usiminas SA就巴西重大钢铁项目签订供 五矿发展/中冶集团 应合同 外运股份并购参股南京港、武汉港和江阴港
外运股份
Prior to joining Tian Yuan in 2001, he had served as the general counsel in China Metallurgical Group. He is the principal partner for both projects. The firm expects Chai’s appointment to give a further boost to its international trade practice. “Given the policies encouraging domestic companies and financial institutions to invest abroad, there is an increasing amount of opportunities for domestic firms to take part in outbound investment. Tian Yuan will continue to increase its visibility through advising on overseas projects,” says Chai. The firm expects strong performance throughout 2008. In January, the firm expanded the office space for its Beijing headquarters. This additional space will be put to very good use in coming years, as the firm continues to attract new talent and clients at local, national and international levels. 国际贸易专家柴杰去年被晋升为合伙人，他对 天元成功签约以上两个项目功不可没。在2001年 加盟天元之前，他曾任中国冶金科工集团法律总 顾问。天元表示通过晋升柴杰为合伙人，其国际 贸易业务将得到进一步的推进。 柴杰说道：“受到国家政策的鼓励，越来越多 的国内企业和金融机构纷纷到海外进行投资，因 此国内律师事务所参与海外投资的机会将不断增 多。天元将努力为客户的海外项目提供更多优质 服务，争取在该领域树立卓著声誉”。 此外，随着新劳动合同法的颁布实施，天元劳 动法律师享有的市场份额正逐渐增大，参与雇佣 业务的深度和广度均不断延伸。在劳动法方面经 验丰富的合伙人孙彦见证了各个公司对劳动关系 法律服务需求的强劲增长。 “新劳动合同法对雇主和雇员均产生重大影响， 特别是在中国这样一个世界最大的劳动力市场，” 孙彦表示，“拥有劳动法专家的事务所将炙手可 热。我们正积极加强知识储备，努力利用本所的 法律专长为客户提供切实服务。” 展望2008年的发展，天元合伙人踌躇满志。 一月初，事务所已为北京总部办公室扩租了办公 场所。未来几年，随着事务所继续在本地、全国 和国际层面吸引法律人才，获得客户委任，新的 办公空间必将大有用武之地。
FIRM PROFILE
us to be innovative and have an excellent grasp of the structures, the rules and regulatory aspects,” says Liu. “We met these requirements with our competitive edge - our in-depth understanding of the law and practice and our prudent yet constructive professionalism.” In keeping with its prominent standing in the corporate and financial sectors, Tian Yuan has established itself as a respected player in litigation and dispute resolution. The litigation team is headed by partner Li Qi, and has been involved in many large and complicated court cases. In particular, clients and peers draw attention to the team’s strength in intellectual property protection practice.
天元律师事务所 Tian Yuan Law Firm Zeng Xi, Partner Tel.: (8610) 8809-2188 Fax.: (8610) 8809-2150 Website: www.tylaw.com.cn
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NEWS >>
ISSUE 5.4
ANALYSIS
ing to increase salaries by between 10% and 20%,” said Su.
In-house
Following wi the money ey Money does not necessarily buy job satisfaction, but if a firm pays below market rate, chances are they will soon see lawyers voting with their feet. ALB China looks at salary trends across key Asian markets
W
hat am I worth? This is the question every lawyer asks when reassessing their job. In a market where ‘growth’ and ‘boom’ are the buzz words, it is easy to get the impression that lawyer salaries are sky-rocketing. But what is actually happening out there? Generally the trend in Hong Kong has been one of steady rises across the board, said Florence Pang, a senior consultant with Hudson Recruitment. Pang said that for international firms, the average rise in 2007 would have been over 10%. 2007 saw some dramatic salary hikes too, but Pang noted that these tended to occur in specific areas of specialisation, with corporate finance and capital markets expertise most in demand. “In those markets, I’ve seen increases of over 30%, although I would say the norm is about 15%,” said Pang. The market in China is similarly strong, with firms upping the ante to attract the right talent. One salary survey estimated salary growth in top tier domestic firms to be as high as 19% – thereby narrowing the gap with international firms.
16
“Certainly there is an upward pressure on salaries,” said Scott Guan, co-managing partner of J&F PRC Lawyers. “We’ve increased associate compensation significantly since mid last year, and in addition we’ve adopted an incentive plan so that associates with quality performance will get a good bonus, which can be up to 8–10 months’ salary.” Guan said that the incentive scheme, together with a clear partnership track, has been a very successful part of the firm’s recruitment and retention strategy.
Brain drain These salary trends have implications right across Asia too as younger lawyers relocate to cities where more lucrative remuneration is on offer. Malaysia is one key example. “We’re definitely experiencing a brain drain,” said Siew Ling Su, partner at Kuala Lumpur-based firm Tay & Partners. “The general sentiment among law firms is that there are fewer good candidates to choose from.” And as the law of supply and demand dictates, salary rises necessarily follow. “Some firms are hav-
The demand for in-house counsel has been a source of competition for law firms in recent years. “We regularly get calls from recruiters trying to fi ll in-house corporate roles,” said Irene Yang, partner at Guangzhou-based Guangda Law Firm. Yang said recruiters are seeking to fill roles in Shanghai, Hong Kong and Singapore. However, lawyers who make the transition to in-house teams are not necessarily copping the pay cut that has accompanied such a move in the past. “Increasingly, companies are able to attract lawyers to in-house teams with salaries comparable to those on offer in law firms,” said Pang. “In-house roles are always attractive to lawyers because of the work-life balance and the chance to get away from the billa in ngs pressure of a big firm.” The opporttunity to earn a large bonus is a major factor too. “For lawyers going in-house with an investment bank, the bonus will often more than compensate for any loss in base salary,” said Pang.
Closing the gap In the Australian market, the demand for senior associates has resulted in a narrowing of the salary gap between themselves and salaried partners, but this trend has not appeared among firms in Hong Kong. “There hasn’t really been any significant narrowing of the salary gap between senior associates and salaried partners,” said one industry source. “That’s one of the reasons why senior associates are attracted to the in-house market, because corporates and banks can take advantage of that gap to attract talent.” The source said that the uncertainty surrounding when, and indeed, if, a senior associate might attain partnership, adds to the attraction of moving in-house. Pang agreed: “Certainly the gap hasn’t narrowed significantly.” Pang noted that the lawyers who are particularly in demand are not necessarily senior associates, but lawyers in the 3–5 QPE bracket. “Lawyers in that range are relatively mature technically and their salary expectation is more manageable.”
Singapore In Singapore, some – but not all – of these trends are apparent. “There hasn’t been a stellar increase in salary levels, but certainly firms have been willing to pay
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more for the right person,” said Jeremy Small, director of Law Alliance Recruitment Singapore. Small estimates that the average salary increase last year would have been about 10–15%, albeit with a great deal of fluctuation from firm to firm. Small said there is an overlap between a senior associate salary and salaried partners in some firms, although not in Magic Circle or US firms. However, he said this can be explained by historical and local factors. “In a lot of firms you’ll see quite a conservative level of partnership, with senior associates who have been there up to 15 years but are unable to make partner. It’s a particular issue for New York law firms, who make very few partners outside of New York.” The result, said Small, is senior associates being paid at the very top end of the scale. “I’ve even seen some instances of senior associates taking a pay cut when they attain partnership.” Small also attributes the smaller gap between senior associate and salaried partner to the opportunities on offer in Singapore. “Compared to the Hong Kong market, there are less opportunities for frustrated senior associates to go elsewhere. Singapore is a growing market with some opportunities to go in-house, but not necessarily at the same salary levels to which international lawyers would be accustomed.”
Future trends There are mixed signals for salary trends in the future. A report by recruitment firm Michael Page predicts more of the same, with private practice salaries in Hong Kong to rise between 7–11% over the year in top-tier firms, with rises of up to 20% for in-demand skill sets. The report also forecast that in-house salaries would also be on the move, with 8–15% rises over the next 12 months. However, Pang is more cautious in her predictions. “Law fi rm business is driven mainly by fi nancial activity. My prediction is that salaries over the next year will stabilise somewhat because of the uncertainty created by the US subprime crisis. A lot of people are waiting to see what the real picture will be,” she said. A lot of firms are echoing this cautious approach, although no-one can afford to fall out of step with salary trends just yet. “Our pipeline [of work] is still pretty good,” said Ferrier. “We’re not changing tack yet, but we’re certainly keeping a close eye on the situation.” ALB
INTERNATIONAL FIRMS: SALARY INDICATIONS HONG KONG
SINGAPORE
SHANGHAI
newly qualified
HK$660k–870k
n/a
RMB700k–900k
1 year PQE
HK$720k–940k
n/a
RMB720k–1.25m
2 year PQE
HK$780k–1m
S$80k–170k
RMB750k–1.35m
3 year PQE
HK$860k–1.15m
S$90k–190k
RMB800k–1.4m
4 year PQE
HK$900k–1.3m
S$130k–230k
RMB900k–1.5m
5 year PQE
HK$960k–1.4m
S$140k–254k
RMB1m–1.6m
6 year PQE
HK$1m–1.6m
S$150k–290k
RMB1m–2m
7 year PQE
HK$1.2m–1.8m
S$162k–300k+
RMB1.2m–2.2m
8 year PQE
HK$1.2m–1.8m
S$174k–360k+
RMB1.2m–2.2m
Source: Hudson
随‘薪情’而动
我
价值几何？这是每一位律师在重新评估自己 工作时都会问到的问题？在一个“增长”和“繁 荣”成为流行语的市场中，很容易让人留下律师薪水 一飞冲天的印象。然而，真实情况是怎样的呢？ 全球人事招聘公司翰德的高级顾问Florence Pang表示，总而言之，香港律师的普遍薪资情况是稳 步上升，2007年国际律所平均增长率为10%以上。 但Pang指出，这种高速增长往往出现在特定的专 业领域，比如公司融资和资本市场。Pang表示，“ 在这些领域中，薪水增长率超过30%， 而其他领 域一般约为15%。” 中国市场的发展也同样强劲，部分律所以高薪 招贤纳才。据一份薪酬调查结果统计，国内一流 律所的薪水增长率高达19%，不断缩小与国际律 所的差距。 九州丰泽律师事务所联席管理合伙人管云翔表 示，“律所肯定存在薪水上调的压力。自去年年中 起，我们就大幅提高了律师的薪酬。此外，我们还 采纳了奖励计划，业绩优良的律师可得到较高的花 红，最高可达8至10个月的薪水价值。” 管云翔表 示，奖励计划和清晰的合伙人发展道路是该所人才 招募及挽留策略中极为成功的一部分。
人才流动频繁 这种薪酬趋升的走势也对整个亚洲产生了影响， 因为较为年轻的律师往往会转投至薪酬更为丰厚的 城市。以马来西亚为例：吉隆坡Tay & Partners的 合伙人Siew Ling Su表示，“我们确实遭遇了人才流 失，目前律所的一般状况是，优秀人才日渐减少。” 按照供需法则，随后必然是薪水上升。Su表示，“部 分律所已将薪水增加10%至20%。” 大部分澳大利亚律所也存在律师流失国外的问 题，造成其律师总数有所减少。安德慎律师事务所 (Allens Arthur Robinson)的人力与业绩总监Susan Ferrier表示，目前的一个特别趋势是，拥有两至五 年经验的律师倾向于到国外工作。从传统上来讲， 纽约和伦敦较受澳大利亚律师的青睐，但利润日渐 丰厚的亚洲市场的诱惑力也在不断增强。
企业内部法律顾问 近年来，对企业内部法律顾问的强劲需求构成 与律所在人才方面的竞争。广东广大律师事务所合 伙人杨闰表示，“我们经常接到猎头公司顾问的电 话。”杨律师说，招聘者希望招到能在上海、香港
和新加坡工作的企业法律顾问。 虽然以前人们常常认为企业法律顾问的薪水不 如律师事务所的律师，然而，转职担任企业顾问的 律师未必会面临收入降低的问题。“越来越多的公 司能够为内部法律顾问提供与律所相当的薪水，” Pang表示，“因为在企业内部工作既能够平衡工作 与生活，又能摆脱大型律所对业务量要求所造成的 压力，因此内部顾问一职对律师始终具有吸引力。” 赚得大笔年终奖金的机会也是一大因素。Pang表 示，“对于担任投资银行内部顾问的律师而言，奖 金往往超过了基本工资的差额。”
弥合差距 在澳大利亚，对高级律师的需求之大已使得高级 律师与初级合伙人之间的薪酬差距日渐缩小。但香 港尚未出现这种趋势。 一位香港业界人士表示，“高级律师与初级合伙 人之间的薪水差距还未真正实现大幅缩小。这便是 高级律师转而担任企业内部顾问的原因之一，因为 公司和银行可以利用这一差距吸引人才。”该人士 指出，对于何时成为、及是否确实能够成为合伙人 的前景不明朗，也是高级律师离开律所，担任企业 顾问的推动因素。Florence Pang对此表示同意，“ 的确，差距并未显著缩小。” Pang说道，拥有需求 殷切的专长的律师并非一定是高级律师，而是拥有 3至5年经验的合格律师。“这一水平的律师在技术 上相对成熟，期望的薪水也更容易把握。”
未来趋势 未来的薪水趋势可谓喜忧掺半。招聘公司Michael Page报告中预测的趋势与此相同，对于在香港一流 律所执业的律师而言，今年薪水将增加7%至11%， 拥有所需专长的人士可实现20%的增长。该报告另 预计，企业内部顾问的薪水也呈上涨趋势，将在未 来12个月间上升8%至15%。 然而，Florence Pang对预测持更为审慎的态 度。“律所的业绩主要靠其融资业务驱动。我预计， 由于美国次贷危机产生的不确定性，下一年的薪 水将在一定程度上保持稳定。大家都在静观形势发 展，看未来的真实情况为何。” 多家律所对这一审慎预测表示赞同，但目前还无 人敢于逆薪水上升趋势而行。Susan Ferrier表示，“ 我们的工作模式仍运行良好，尚未做出任何变化， 但我们肯定会密切关注情势的发展。”
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NEWS >>
ISSUE 5.4
BEIJING
SINGAPORE UPDATE
Zhonglun W & D merges with Li He
新交所拟确定反向收 购最低股价标准
Z
2
008年2月1日，新加坡证券交易所（“新交所”）宣布其将审查并考虑 修订新加坡上市手册中（“上市手册”）的部分条例，其中包括设定反 向收购中最低股票价格的标准，即新币0.2元。 反向收购的定义见于上市手册第1015（1）款和第1006（d）款， 概而言之，包括以下两种情况：1）发行人为资产并购（无论此项并购是否视为 发行人的例常商业交易）的对价发行的股票数量占已经发行股票数量的100％或 以上，或2）将因此导致发行人的控股权发生改变的交易。因反向收购事实上 被认定为间接上市的一种简便途径，因此新交所早已开始将其纳入与IPO同等 的管理标准，例如：现行的上市手册在第1015（3）（a）款中已经规定，反 向并购之后，在新交所主板上市的发行人之公司规模必须符合上市手册第221 条和第222条的规定，即需满足一般公司IPO的门槛条件。 因2007年度反向收购的案例与日剧增，新交所也开始重点关注相关的进展， 并且开始审核并考虑适当修改上市条例，试图将对反向收购的规范标准与IPO 的标准相平衡。而且，现今适用于首次公开发行的股价不得低于新币0.2元的 标准将有可能被适用于反向收购，即上市公司用于支付对价的而发行的新股价 格不得低于新币0.2元。 新交所表示设定最低股价标准的目的主要是为了避免下列风险因素： ● 低价发行而造成的过度不稳定性 ● 低价股票易受市场不稳定之影响且易被市场操控 ● 投资者可能不关心发行人的实质，而是关注股票价格的支付能力；和 ● 低价股被认定劣质股 新交所认为最低发行价——新币0.2元的标准有利于促进上市公司股权结构的 合理性并优化公司治理质量，从而增强市场的公平和有效性，同时向投资者和 公众股东保证上市公司的质量。一旦时机成熟，新交所将会启动相应的程序， 包括向公众咨询修改意见等，以确定最终的方案。
巫美清 企業融資部资深律師 Ph: (65) 6322-2228 Fax: (65) 6534-0833 E-mail: cherylvoo@loopartners.com.sg
巫美清
陳姝 企業融資部法律專員 Ph: (65) 6322-2230
BEIJING
Lawyers form special legal team for Beijing Olympics
W
ith less than 150 days until the opening ceremony of the Beijing 2008 Olympic Games, 25 permanent lawyers in Beijing have formed a mobile legal service team to support the games. The team will serve as special counsels to various government bodies for urgent legal matters during the international games. Many among the 25 lawyers are heads of various practice groups of the Beijing Bar Association, specialising in practice areas such as civil law, criminal law, administration law, contract law and IP law. Some are f luent in English, German, Korean and Japanese. Vice president of the Beijing Bar Association, Gong Sha, was appointed as the head of the team, while Zhang Xuebing, managing partner of Zhonglun, was appointed the co-head. During the games, all members of the team must give priority to Olympics-related matters and are not allowed to leave Beijing at any time. ALB
Fax: (65) 6534-0833 E-mail: chenshu@loopartners.com.sg
奥运法律服务机动小组在京成立
俊昭法律事務所
在
88 Amoy Street, Level Three Singapore 069907
18
honglun W & D, one of ALB China’s Fast 10 firms in 2007, is likely to continue its expansion rate throughout 2008. The firm has expanded its business spectrum as well as its size by merging with Beijing local firm Li He. Prior to the merger, Li He had 12 qualified lawyers and was headed by managing partner Chen Wen. The entire Li He team will be integrated into Zhonglun W & D’s Beijing office, and the new firm’s name will remain Zhonglun W & D. Zhonglun W & D is highly regarded in the areas of corporate, finance and real estate, while Li He practices are mainly focused on infrastructure, finance, and energy & resources. The merger serves Zhonglun W & D’s development strategy to be a large fullservice national firm with specialised practice groups. ALB
陳姝
距北京2008年奥运会开幕式不到150天之际，北京25名知名律师受聘组 成了一支机动法律服务小组，以行动支持这一全球盛会。该小组将在奥 运会期间就紧急突发事件向各政府机构提供特别顾问服务。
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INTERNATIONAL TAX UPDATE
中伦文德与理和合并
Residence and Domicile The 2008 UK Budget Changes
在
2007年被ALB评为“中国成长最快事务所” 之一的中伦文德，有望于2008年继续保持快 速发展的势头。该所近日与北京理和成功合并，扩 大了业务范围和经营规模。合并前，理和拥有12名 合资格律师，由首席合伙人赵宏瑞律师领导。理和 的团队将整体并入中伦文德北京总部，合并后，事 务所仍沿用“中伦文德”品牌。 中伦文德在公司、金融和房地产领域享有盛誉， 而理和的专长则在于基础设施、金融以及能源业 务。中伦文德的战略是发展成为以多个专业团队为 基础提供全方位法律服务的大型专业律师事务所， 与理和的合并正切合这一战略目标。
T
he Chancellor of the Exchequer Alistair Darling made his first Budget speech on 12th March 2008, which included many predicted changes to the rules on UK tax residence, and, more extensively, on the taxation of non UK domiciled individuals who are not ordinarily resident in the UK.
Chen Wen, Zhonglun W&D
奥运法律服务机动小组名单 组 长 巩 沙 北京市律师协会副会长 副组长 张学兵 北京市律师协会理事、北京市律师协会业务指导委员会主任（英 语特长） 联络员 刘 军 北京市律师协会副秘书长 组 员 （组员排名不分先后） 蒋京川 江川
民法专业委员会主任
钱列阳 大成
刑事诉讼法专业委员会主任
杨晓虹 潮阳
刑法专业委员会主任
吕立秋 观韬
行政法专业委员会主任
李京生 隆安
奥运与文体法律事务专业委员会主任（英语特长）
邱宝昌 汇佳
消费者权益法律事务专业委员会主任
刘守豹 普华
合同法专业委员会主任
任丽颖 融商
传媒与新闻法律事务专业委员会主任
张金澎 卓代
汽车与交通法律事务专业委员会主任
李德成 金诚同达 信息网络与电子商务法律事务专业委员会主任 王建平 德恒
劳动与社会保障法律事务专业委员会主任
郝惠珍 盈科
婚姻与家庭法律事务专业委员会主任
李 菡 万思恒
产品质量与侵权损害法律事务专业委员会主任（英语特长）
蔡耀忠 赛德天勤 物权法专业委员会主任（英语特长） 马 翔 天驰
商标法专业委员会主任
王卫东 国浩 任（英语特长）
外事委员会委员、建筑工程与基础设施法律事务专业委员会主
阎建国 信利
北京市律师协会理事、农村法律事务专业委员会主任
常 建 众一
环境与动物保护法律事务专业委员会主任（英语特长）
魏大忠 中伦文德 刑法专业委员会委员、北京市“08一办”法律顾问 白 涛 君合
北京市律师协会理事、外事委员会主任（英语特长）
杜宝成 融商 语特长）
外事委员会委员、国际投资法律事务专业委员会副主任（德
姜山赫 铭泰 语特长）
外事委员会委员、并购与重组法律事务专业委员会副主任（韩
赵 维 明诚
外事委员会委员（日语特长）
这25名律师均是北京市律师协会各专业委员会的主任和骨干律师，是精通 民法、刑法、行政法、合同法和知识产权法等方面的专家。部分律师能说流利 的英语、德语、韩语或日语。 北京市律师协会副会长巩沙被委任为小组负责人，中伦金通的管理合伙人 张学兵被委任为副组长。在奥运会期间，小组所有成员均须优先处理奥运相关 事宜，且不得离开北京。
NON UK RESIDENCE Day Counting Rule - Currently days of arrival and departure from the UK are not counted towards the number of days a person spends in the UK to determine UK tax residency. The Government had proposed to change this so that days of departure and arrival both count. In the end they compromised and decided that, from 6th April 2008, any day an individual spends in the UK at midnight will be counted. NON UK DOMICILE The Remittance Basis - Non UK domiciled individuals living in the UK have been treated very generously in the past such that their worldwide (non UK) income and gains would only be taxed when remitted to the UK. From 6th April 2008, this has changed as follows: (a) Individuals can choose each year whether they wish to use to the remittance basis. (b) Anyone choosing the remittance basis will no longer be eligible to claim personal allowances (of £5,435 for 2008/09) or the annual exemption for capital gains (£9,600 for 2008/09). (c) There is an annual charge of £30,000 for remittance basis users who have been resident in the UK for more than 7 out of the last 10 years. This charge will be creditable against foreign taxes and the Government have exempted children from being required to pay the charge. However, the payment of the £30,000 charge from offshore income or gains will itself be a remittance to the UK, and thus taxable unless directly paid to HM Revenue & Customs. (d) Those with small offshore income and gains (less than £2,000 per year) will be exempt from the above changes. Closing Remittance Loopholes The Government has closed various loopholes previously exploited by remittance base taxpayers, such as: • The “ceased source” loophole. Previously if the source of income ceased and the income subsequently remitted to the UK in later years, there was no tax. Now the income will be taxed. • Previously income or gains made and converted to an asset that was then imported to the UK was not taxed until the asset was sold. In future, such imports will be taxed. But there is exemption for all assets owned at 11th March 2008, and also a minor exemption for assets that are personal effects costing less than £1,000 each (clothes, jewellery, watches, etc). • Previously if overseas income and gains were “alienated” – transferred offshore to another person – and then remitted to the UK, this would avoid tax. In future, these will be taxed on remittance to the UK if the funds had been “alienated” to a close family relative. 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
19
NEWS >>
ISSUE 5.4
SHANGHAI
INTELLECTUAL PROPERTY UPDATE
IP Focus: Mascots & Shanghai Style
L
ynn Pan gave one of the opening talks at the Shanghai Literary Festival this year, an illustrated speech detailing Shanghai’s grand attempt to integrate Chinese design with modern graphic art during the 1920s and 30s. The city’s early ambition and outward facing attitudes allowed its artists to blend cultural influences from China, Europe, the Americas and Japan into multiple visions of what Ms Pan calls “Shanghai Style” The legacy of that style sense was challenged during mascot selection for the 2010 World Expo. The winner, called Hai Bao, cuts a simple profile and sports a Tintin-esque tuft of hair on its head. Ignoring critics who claim it looks like a condom, the selection jury stated that Hai Bao personified the character ‘人 ‘ ren’ and the colour blue, as Shanghai is a coastal city. Yes, it’s cute, and yes, it sings. It’s not ‘Shanghai chic’ that is on display here, just ‘style’. But compared to the 2008 Olympic Fu Wa, who recently have permeated the airwaves and – in sickly sweet tones on late-night TV – admonished Chinese viewers to pick up their trash, speak quietly and line up politely, the Hai Bao is a modern construction. The mascot’s clean lines and confident stance represent a strong sense of optimism about Shanghai’s future. For IP, mascots also bring good fortune. China is – through events like the Expo and the Olympics – realizing that mascots and symbols must be carefully protected. Administrative officials have been ordered to clean up Olympic mascot counterfeits and unauthorized products on the market without waiting for the rights owner to request action. The message has gone out and all sellers in the markets know that unauthorized goods are forbidden. Even service applications are being checked: China’s tourism industry was warned against the illegal use of event logos and slogans. As one of the top venues for civil litigation in China, Shanghai already has a good reputation in IP matters. Judges in the city’s courts hand down sophisticated and nuanced decisions that have rights owners cheering. And while counterfeits are still available, there tends to be less than in other areas of China, and officials tend to quickly resolve issues that are brought to them. Enforcement at trade fairs appears to be the big exception to this, but even in this area it is expected that Shanghai will toughen its standards soon. City officials have created a dialogue with rights owners that other areas should envy. Uncooperative attitudes in inland IP black holes and soaring market counterfeit rates have rights owners hoping that other provinces will develop their own sense of ‘Shanghai style’. 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
20
First tax boutique opens T he financial hub of China has seen the establishment of the country’s first tax boutique law fi rm – Shanghai Zuo Quan. The fi rm was founded by tax specialists Yan Xizhong, Lu Guoyang, Song Haijia and Zhong Feiying in August last year. Yan Xizhong, the former managing partner of Shanghai firm Co-effort, and Lu Guoyang, the former head of the finance and taxation department at Co-effort, have brought the entire team
Yan Xizhong, Zuo Quan
首家税务专业所在上海开业
财
税专家严锡忠、卢国阳、宋海佳和钟斐颖于去年8月在全国的金融 中心上海成立了中国首家专注于税务法律服务的律师事务所—— 上海左券。 上海市协力律师事务所的原执行合伙人严锡忠与协力财税部的原负责人 卢国阳带领原协力财税部的整个团队离开协力同时组建左券。宋海佳和钟
SHANGHAI
Miller Canfield looks to expand into China U
S-based law firm Miller Canfield has followed up its previous expansions into Canada and Eastern Europe with the announcement that it has filed an application with the Ministry of Justice, requesting approval to open a new representative office in Shanghai. The firm, which with over 350 lawyers is one of Michigan’s largest, envisages that the Shanghai office would serve North American and European clients in a number of sectors including life sciences, automotive and non-auto manufacturing; and would expand the firm’s services in IP, environmental law, and corporate and securities including crossborder mergers, acquisitions, joint ventures and foreign direct investment. Miller Canfield principal Thomas Appleman will lead the new office. Appleman, who has 27 years’ experience in corporate and securities law, will be joined by life sciences attorney Weisun Rao, who specialises in patent law and IP transactions, and is a
Miller Canfield 欲进军中国市场
在 Diana Matthias
成功进入加拿大和东欧市场后，美国律师事务所Miller Canfield宣布， 已就开设上海代表处向司法部提出申请。 该所拥有超过350名律师，是密歇根最大的律师事务所之一。该所计划由 上海办事处向北美和欧洲客户提供法律服务，领域包括生命科学、汽车和非 机动车制造，并将组将扩展至知识产权、环境法、公司和证券业务，包括跨 境并购、设立合资企业和外商直接投资等。
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SHANGHAI UPDATE
its doors in Shanghai of the F & T department from Co-effort to Zuo Quan. Song Haijia and Zhong Feiying were previously partners with Shanghai Hua Xia & Partners. Currently, there are four partners and a number of associates at Zuo Quan. Most of them are dual-qualified as lawyer and certified public accountant (CPA). With their combined knowledge and skills in both finance and law, the firm provides ‘one-stop’ tax legal services in investment, M&A, restructuring and liquidation, tax planning and corporation financing. The firm is looking to add tax expertise through lateral hires. ALB
斐颖则是上海正义华夏的原合伙人。 目前，左券拥有四名合伙人和多名律师，大部分人拥有律师和注册会计 师 (CPA) 双重资格，集财务和法律技能于一身。因此，事务所可提供有关 投资、并购、重组与清算、税务规划和企业融资等方面的一站式服务。该 所期望通过横向招募，为事务所继续扩充财税专家阵营。
Chinese national, fluent in Mandarin and English. “Shanghai is China’s technology hub and its largest commercial, financial, industrial and communications centre,” said Michael Hartmann, CEO of Miller Canfield. “Opening an office in China is a natural expansion of our international practice and for our growing work in the Asian Pacific rim.” If approved, Miller Canfield expects to open the office in the fourth quarter of 2008. ALB Miller Canfield 的负责人Thomas Appleman将统领新代表处的工作，他拥 有27年的公司和证券法经验。代表处另一名员工是中国籍律师Rao Weisun， 他的专业特色主要集中在生命科学，专利法和知识产权交易方面。 “上海是中国的技术中心和中国最大的商业、金融、工业和运输中心，” Miller Canfield 的首席执行官Michael Hartmann 表示，“在中国开设办事处 是本所国际业务扩展需求以及环亚太区业务量增加的必然结果。” 如获批准，Miller Canfield的新办事处预计将于2008年第四季度开业运营。
Legal Analysis of Issues in Relation to the Management of Designated Accounts
O
n 29 November 2007, the CSRC promulgated the Experimental Measures on the Management of Designated Client Assets by Fund Management Companies (“Experimental Measures”) and the Notice on the Implementation of the Experimental Measures, which stipulate that, from 1 January 2008, fund managers can conduct their asset management business for designated clients on a one-to-one basis, namely, the business of Wealth Management of Designated Accounts. The Wealth Management of Designated Accounts means activities of fund managers to raise capital for, or appointed as asset managers by specific clients. The Experimental Measures fail to provide for the legal modes for the Wealth Management of Designated Accounts. In our opinion, Wealth Management of Designated Accounts by fund managers may adopt following models: • “Co-trustee” mode - both the asset manager and custodian act as trustees of the asset entrusting party under the legal relationship of trust. It is generally accepted that such a mode is adopted in the securities investment funds. Under this mode, the ownership of the entrusted property, namely whether the entrusted property is owned by the asset manager or custodian, may be unclear. • “Trust Plus Entrustment” mode - the asset manager acts as the trustee of the asset entrusting party under the legal relationship of trust and the assets custodian acts as the entrusted party, i.e. as a custodian, of the asset manager under the legal relationship of entrustment. The asset manager shall use the entrusted property to make securities investments in its own name for the benefit of the asset entrusting party, and entrust the asset custodian with the custody service regarding the entrusted property. The “Trust Plus Entrustment” mode solves the problem of ambiguousness of the ownership of the entrusted property under the “Co-trustee” mode. • “Bi-entrustment” mode. Under such mode, the asset manager and asset custodian both act as the entrusted parties of the asset entrusting party under the legal relationship of entrustment. The asset manager conducts securities investment activities through the account of the asset entrusting party, who opens the capital account in its own name with the asset custodian and entrusts the asset custodian with the custody service regarding the entrusted property.
Andrew Fu Llinks Law Offices Tel:(86 21) 6881 8100 Fax:(86 21) 6881 6880 Email:andrew.fu@llinkslaw.com www.llinkslaw.com
Andrew Fu
21
NEWS >>
ISSUE 5.4
SHANGHAI
CHINA UPDATE
Cuatrecasas gears up for Reforms in the PRC Labor Shanghai opening Spanish firm Cuatrecasas has taken a step towards Dispute Mediation and Leading opening its first office in China, applying for a licence to open a representative office in Shanghai. Arbitration Law The firm expects the Ministry of Justice to award the licence
T
he new Labor Dispute Mediation and Arbitration Law of the PRC will take effect as of May 1, 2008 (“New Law”). The New Law streamlines the existing labor dispute regime and aims to lower costs and resolve labor disputes “fairly and timely”. Major highlights are as follows: 1. Initiating mediation and arbitration of labor disputes will be free of charge. 2. The New Law provides for mandatory mediation prior to an arbitral award is given; and arbitration may be by-passed if the labor dispute concerns arrears in salaries, recovery of medical expenses for work-related injuries, severance payments or penalties under a mediation settlement agreement so that employees may apply to a court directly for payment orders if mediation has failed. 3. Employee’s grounds of appeal to labor arbitral awards are expanded. Employees may now appeal to a court for any adverse arbitral decision for disputes relating to non-payment of salaries, medical expenses for work-related injuries, severance and penalties regarding a disputed amount not exceeding 12-months of local minimum monthly wages, working hours, leave entitlement and social insurance contributions, in contrast with the limited circumstances under the Arbitration Law of the PRC that an employee may have recourse to. 4. Employers are placed with a greater evidential burden. Generally, the burden of proof rests on the asserting party; however, under the New Law, the arbitration tribunal has the power to order an employer to produce evidence in its control, and the employer shall bear the “unfavorable consequences” if it fails to do so. 5. Time limit to apply for arbitration is extended from 60 days to one year from the date when the party knows or should have known that his rights have been infringed. An exception to this rule is for disputes over arrears in remuneration, in which case the limitation period does not run until the relevant employment contract has been expired or terminated. 6. The time to settle labor disputes is significantly shortened. Previously, a labor arbitration case must be concluded within 60 days from the date on which the case was filed (and a possible extension to 90 days in exceptional cases). Under the New Law, an arbitration case should be concluded within 45 days from the date of the commission’s acceptance of the case, with a possible extension up to 15 days for complicated cases. Written by: Jeanette Chan, partner Olivia Wong, Hong Kong solicitor 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 ©2008 Paul, Weiss, Rifkind, Wharton & Garrison LLP
22
in July and plans to launch its office in Shanghai by the end of the year. “Each year there’s more investment from Spanish companies into China. We want to accompany our clients there,” said Emilio Cuatrecasas, the chairman of Cuatrecasas. Once approved, Cuatrecasas will be the third Spanish law firm with a Shanghai representative office, after Garrigues and Herrero-Advocats International. ALB
Cuatrecasas 开设上海代表处
西
班牙律师事务所 Cuatrecasas 已申请在上海设立首家代表处。该所预 计，司法部将在7月授予许可，计划上海代表处将在年底开始运营。 Cuatrecasas 总裁Emilio Cuatrecasas 表示，“进驻中国的西班牙公司逐 年增多，我们希望在中国为客户提供贴身服务。” 获批准后，Cuatrecasas 将成为继 Garrigues 和 Herrero-Advocats International之后第三家在上海设立代表处的西班牙律师事务所。
REGION
French UGGC expands UGGC & ASSOCIÉS – FIRM SNAPSHOT • Paris-based full service business law firm • 150 lawyers • 33 partners • 6 foreign offices (in Brussels, Casablanca, Beijing, Shanghai, Guangzhou and Taipei) • 45% of transactions are international
I
ndependent French firm UGGC & Associés has reached an agreement with French rival Adamas whereby the partners formerly of Adamas Asia will join UGGC & Associés. UGGC has thereby added five new partners to its ranks – Franck Desevedavy, Olivier Dubuis, Olivier Lefébure, Alina Quach and Arnaud Depierrefeu. Desevedavy and Quach will join the firm’s Beijing team while Dubuis and Depierrefeu will be based in Shanghai. Desevedavy is also in charge of the Taiwan office. Lefébure is the partner in charge of the firm’s Asia Desk in Paris. ALB
法国 UGGC，通过合并实现壮大
继
Jeanette K Chan
JSM/Mayer Brown在今年早些时候进行合并之后，法国独立事务所 UGGC & Associés也实现了自身的扩张。该所已同其法国竞争对手 Adamas达成协议，原Adamas Asia的团队将加入UGGC & Associés。 在此协议生效后，UGGC麾下蒋新增五名合伙人––Franck Desevedavy、Olivier Dubuis、Olivier Lefébure、Alina Quach 和 Arnaud Depierrefeu 。 Franck Desevedavy和Alina Quach将加盟该所的北京团队，而Olivier Dubuis和Arnaud Depierrefeu将驻职上海，Franck Desevedavy另兼负责台 湾办事处的工作，Olivier Lefébure则负责该所位于巴黎的“亚洲部”。
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REGION
REGULATORY UPDATE
Fulbright expands Asian presence China’s Foreign Trade Agency System: Commission or Brokerage?
I F
ulbright & Jaworski has added five new lawyers to its Beijing and Hong Kong operations. Legal consultant He Yuping joins Fulbright’s Beijing location from a large national oil company in China and associate Joanne Du has joined from another major international law firm. Meanwhile, legal consultant Lori Ji has relocated from Fulbright’s Hong Kong location to round out the Jeffrey Blount, Fulbright new additions in Beijing. Additionally, partner Steve Vogel has relocated to Hong Kong from Fulbright’s London location. Senior associate Ben Smith joins the firm in Hong Kong from a major international firm in London and counsel Alexandra Freeman has also joined from an international firm. Fulbright’s growth in Asia continues the expansion of the firm’s global energy and projects practice. In recent months, Fulbright has also expanded its locations in the Middle East and the UK. “China continues to be a dynamic and important market for our clients as their global businesses expand,” said Jeffrey Blount, the head of Fulbright’s Hong Kong and Beijing locations and co-head of the firm’s international practice. “Our presence in Asia is key for our clients, as we continue our long history of cross-border work and to continue building on our strengths.” ALB
Fulbright 扩大亚洲阵营 ulbright & Jaworski 的北京和香港办事处近日新增五名律师。加盟 Fulbright北京代表处的法律顾问He Yuping来自一家中国大型国有石油 企业， Joanne Du 律师来自另一家著名的国际律师事务所，法律顾问Lori Ji 则从Fulbright的香港办公室调职至北京代表处开展工作。 此外，合伙人Steve Vogel从Fulbright伦敦办事处调职至香港。高级律师 Ben Smith从伦敦一家著名国际事务所转投Fulbright香港办事处，法律顾问 Alexandra Freeman也来自国际律所。 Fulbright在亚洲的发展提升了该所在全球运营项目的能力。近几个月 来，Fulbright还增加了在中东和英国的代表处。 Jeffrey Blount是Fulbright香港和北京办事处的负责人兼该所国际业务的 联席负责人，他表示“随着中国企业在全球的扩展，中国将继续是本所客户 的重要市场。我们在亚洲设立办事处对客户而言至关重要，我们将秉承提 供跨境服务的悠久传统，充分发挥本所优势。”
F
n the course of drawing the Contract Law, actually, there was once a chapter called “Foreign Trade Brokerage” in the draft made by experts and scholars, which was finally deleted due to their inconsistent recognition. However, they kept a special chapter called “Contract for Brokerage” in the Contract Law, under which, “a brokerage contract refers to a contract whereby the broker is, in his/her own name, engaged in trade activities for the benefit of the principal, and the principal pays the remuneration” (Article 412) and “where a contract is concluded between a broker and a third party, the broker shall directly have the rights and assume obligations under the contract” (Article 421). In this respect, the Explanation and Application of Contract Law, which is chiefly edited by Li Guoguang, vice-Presidents of the Supreme People's Court, and written by economic court of the Supreme People's Court, provides that foreign trade agency contracts under the Provisional Rules are essentially brokerage contracts. Opinions by Beijing Municipal Higher People's Court on Several Issues Concerning the Application of Deciding the Validity of Arbitration Agreement and Application for Setting Aside Arbitration Award, which was issued on December 13, 1999, has clarified that “foreign trade agency system, as a specific legal system in China’s foreign trade activities, does not belong to the agency system prescribed in the General Principle of Civil Law. The arbitration clause concluded by the agent in his/her own name has no binding force to the principal (exclusive of in the commission contract under the Contract Law)” Therefore, we think that China’s foreign trade agency contracts are actually brokerage contracts and can not apply to Article 402 of Contract Law to directly bind the unnamed principal. However, given that there are still conflicts on the understanding of this rule, it is advised that parties of such transaction, in particular foreign businessmen, shall have to pay particular attention to above conflicts when signing such import and export contract and as far as possible make necessary arrangement and expression in the contract. After all, Article 402 of Contract Law does not reject the otherwise agreement made between the parties. David Yang Tahota Law Firm Senior Partner, Vice Director Unit A, 27th floor, World Trade Center No.117 Gulou Nan Road, Chengdu, P.R.China Tel: 86-28-86759432 E-mail:yjhlawccpit@126.com
David Yang
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NEWS >>
ISSUE 5.4
APPOINTMENTS
The US report Bear Stearn buyout sparks recruitment frenzy
LATERAL HIRES
A ‘feeding frenzy’ of headhunters and law firm hopefuls has been triggered by the collapse and sale of major US investment bank Bear Stearn to JPMorgan Chase. JPMorgan Chase is expected to lay off a significant number of the bank’s 100-plus lawyers from its 475-strong legal and compliance group, which has the legal scene plotting. Weil Gotshal & Manges got in early and recruited Bear Stearns’ chief operating officer for legal and compliance, David Strumeyer, as its new global executive director in March.
Name
Leaving
Joining
Location
Position
Practice
Howard Zhang
O’Melveny & Myers
Davis Polk & Wardwell
Beijing
Partner
M&A, private equity
Wang Jun
Zhengtai
Gaopeng & Partners
Beijing
Partner
Banking & finance, M&A
Yi Jian
Zhanda
Gaopeng & Partners
Beijing
Partner
Real estate, corporate
Zhang Yan
Capitallaw & Partners
HaoLiWen
Shanghai
Partner
WTO, IP, litigation
Qiao Bo
Yao Liang
J&F
Shanghai
Partner
Corporate, M&A, labour law
Fried Frank reveals rising revenue figures
Liu Honghuan
Zhonglun
Jun He
Beijing
Partner
Litigation and arbitration
Fei Ning
Haiwen & Partners
Jun He
Shanghai
Partner
Litigation and arbitration, FDI, M&A
Huang Song
Haiwen & Partners
Jun He
Shanghai
Partner
M&A, VC
Neil Campbell
Paul Hastings
O’Melveny & Myers
Hong Kong
Partner
Investment funds, securitisation
Cheng Jun
Kun Lun
Zhonglun
Beijing
Partner
Foreign investment, corporate
Chen Jihong
Zhonglun W&D
Zhonglun
Beijing
Partner
IP/IT
Ge Yongbin
Zhenghan
Zhonglun
Shanghai
Partner
Banking & finance
Gong Lefan
Jones Day
Zhonglun
Shanghai
Partner
M&A, private equity
Wang Enshun
King & Wood
Zhonglun
Shanghai
Partner
Securities
Fried Frank Harris Shriver & Jacobson has announced its financial results for 2007/08. The US firm revealed that its gross revenue was up by 14% to US$537.4m, its net profit increased by 10.3% to US$227.3m, and its average profit per equity partner (PEP) rose by 5% to US$1.6m.
Kirsch to take over from Chaffetz Clifford Chance New York partner Mark Kirsch is set to succeed Peter Chaffetz as the firm’s new litigation and dispute resolution head. Kirsch, who has headed the firm’s US litigation practice for the past four years, will serve a four-year term and take on the global role in May. He stood uncontested.
Top US firms flourish in the face of market meltdown 2007 was the strongest on record for the majority of US firms. The top 50 US firms had a profitable year despite market upheaval last summer, with an impressive total of US$46.8bn in revenue for 2007 – an increase of more than 16% on their 2006 total. The average PEP at the leading group of US firms showed smaller – although still significant – growth.
Name
Firm
Office
Practice
Colin Liu
CMS Hasche Sigle
Shanghai
FDI, anti-trust, arbitration, IP
Richard Kim
Allen & Overy
Shanghai
Corporate
White & Case bankruptcy team on the money
Ji Zou
Allen & Overy
Shanghai
Corporate
US firm White & Case secured the top spot for advisory roles on bankruptcies during 2007 with 691 matters. They beat closest rival Duane Morris (which had roles on 261 matters) by almost three-fold. Latham & Watkins, Weil Gotshal & Manges and Winston & Strawn filled out the top five spots respectively.
Roger Lui
Allen & Overy
Hong Kong
Banking
William Woo
Allen & Overy
Hong Kong
Corporate
Karen Ip
Herbert Smith
Beijing
Corporate
Carolyn Sng
Herbert Smith
Hong Kong
Corporate
¨ ROUNDUP
■ High-profile banking partner Jonathan Nabarro bid goodbye to Weil Gotshal & Manges in late March. ■ Skadden Arps Slate Meagher & Flom is set to open an office in São Paulo, Brazil, to be headed up by M&A/corporate partner Jonathan Bisgaier. ■ Virginia-based, 750-lawyer firm McGuireWoods will join forces with North Carolina’s Helms Mullis Wicker to form a 900-lawyer, 17-city firm. ■ Bryan Cave opened a new office in San Francisco in March; it will be headed by litigation partner Lynn McCreary.
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PROMOTIONS
various
Zhonglun
Zhonglun consolidates partnership As the marketplace for legal services matures and competition for senior lawyers who control a book of business increases, law firms, especially large firms, need to offer flexibility in partnership and more choices on the income progression ladder to productive partners. Chen Jihong Zhonglun is one of a few firms that has been able to evolve into a multiple-tier partnership structure. All levels of the firm’s partnership have been expanded and consolidated with a large number of internal promotions and lateral hires. Six lateral hires have been made in order to increase the number of its second-tier partners. These new partners joined Zhonglun from domestic and international firms in Beijing, Shanghai and Shenzhen (see lateral hire table). Six of the firm’s second-tier partners have been promoted to first-tier partners, including Wang Fei and Lu Hongda in Beijing,
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Kong Wei and Zhang Hua in Shanghai, and Su Ming and Zhuang Jiazi in Shenzhen. In addition, six fixed-income partners have been admitted to the second-tier partnership, while five senior associates have been appointed to fixed-income partners.
中伦金通巩固合伙人架构 随着法律服务市场日渐成熟，律所对业务发展举足轻重的高级律人才的需求与 日俱增。事务所需使合伙关系更具灵活性，并为贡献卓著的年轻律师提供更多职 业发展途径，对于大型律师事务所而言，尤为如此。 已经发展了多级合伙人架构的国内律师事务所为数不多，中伦金通便是其中之 一。通过内部晋升和横向招募广纳贤才的机制使得该所各层面的合伙关系均得以 扩大和巩固。 自年初以来，该所已通过六次横向招募增加了二级合伙人的数量，这些新加盟 者均来自北京、上海和深圳的国内外事务所（参见下表）。 六名原二级合伙人已晋升为一级合伙人，包括北京的王飞和陆宏达、上海的孔 伟和张华以及深圳的苏敏和庄家紫。此外，有六名授薪合伙人被提升为二级合伙 人，同时五位高级律师受聘为授薪合伙人。 Yao Liang
J&F
J & F grows corporate practice To increase its capacity to handle the new wave of corporate and M&A work coming in, Shanghai-based J & F have appointed Qiao Bo as a senior partner. Qiao Bo has almost 10 years’ practice experience in corporate, M&A, banking & finance, and labour law. Before joining J & F, he was a partner with Shanghai Yao Liang Law Offices. “We’re very pleased to have Qiao Bo and are confident that our corporate, finance and labour law practices will be further enhanced with Qiao Bo’s appointment,” said Scott Guan, J & F’s co-managing partner, who used to work with Qiao Bo at Yao Liang prior to his appointment with J & F.
九州丰泽增加公司业务骨干力量 随着新一轮企业资本运作和并购潮的风起云涌，上海九州风泽的业务量也随之 增加，为增强对业务的掌控能力，该所已委任乔波担任高级合伙人。 乔波律师在公司法、并购、银行和金融以及劳动法等方面拥有近十年的执业经 验，加盟九州丰泽之前是上海市耀良律师事务所的合伙人。 九州丰泽的联席执行合伙人管云翔表示，“很高兴乔波加盟本所，我们 相信，乔波的加入将进一步提升本所在公司、金融和劳动法方面的服务。
The UK report Promotions all round The London office of Freshfields Bruckhaus Deringer will welcome 10 new partners in May, after an annual round of promotions for the firm which led to 25 new partners. Burges Salmon is another firm caught up in the promotions whirlwind. The Bristol-based firm announced in March that six of its associates were soon to be partners. The promotions are effective from May and will take the firm’s total partner number to 72. Meanwhile, Trowers & Hamlins has resisted the promotions frenzy and decreased its partner promotion count by almost three-quarters compared to last year.
Promotions frenzy continues City firms Pinsent Masons, CMS Cameron McKenna, and Ashurst and Herbert Smith have also revealed their partner promotions for 2008, with both Pinset and Ashurst making up 17 new partners and CMS Cameron McKenna following closely with 11. Ashurst’s City rival Herbert Smith announced that a firm-record of 18 new partners will join the ranks from 1 May.
Clifford Chance increases European reach Clifford Chance is due to launch an office in the Ukraine this summer, bringing the firm’s Eastern Europe office count to six. The new base will be headed up by Nick Fletcher, currently managing partner of the firm’s Warsaw office. The firm is aiming for a team of around 20 local lawyers on opening.
Slaughter and May management shift Slaughter and May has announced that corporate partner Frances Murphy will replace new senior partner Chris Saul as head of the corporate department. She is the first female head in the UK firm’s final round of management elections.
¨ ROUNDUP ■
■ Capitallaw
HaoLiWen
HaoLiWen hires international trade partner Formal partner with Shanghai Capitallaw & Partners, Zhang Yan specialises in anti-dumping, IP and litigation practices, and has joined Shanghai-based HaoLiwen as a senior partner. Zhang has represented many domestic clients in anti-dumping investigations brought in the US and the European Union, and has achieved Zhang Yan positive results for clients in most cases. Prior to his private practice which started in 2004, he had served as in-house counsel in domestic and international companies, primarily providing remedies for international trade frictions, including anti-dumping, anti-subsidy and safeguard issues. He had also served as a judge with a Shanghai intermediate court, responsible for adjudication of corporate and commercial cases.
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Wragge & Co announced in March that it is due to boost its partner count, with nine new partners set to join the Birmingham-based firm in May. Freshfields Bruckhaus Deringer welcomed Mark Rawlinson as the firm’s new departmental managing partner (DMP) for its London Corporate practice in April, taking over from Tim Jones. Energy partner Doron Ezickson took over from David Dalgarno to become the new office head at the London base of US firm McDermott Will & Emery. Ezickson is cohead of the international energy practice. City firm Lovells has rocketed into the mergermarket rankings to take a place as one of the top three firms by value for UK M&A deals in the first quarter. The firm jumped d3 38 8 places. l
昊理文新添国际贸易合伙人 张燕曾是上海东方华银律师事务所的合伙人，专门从事反倾销、知识产权和诉 讼业务，现已加盟上海的昊理文律师事务所，担任高级合伙人。
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ISSUE 5.4
张燕曾在美国和欧美提起的反倾销调查中代理多位 国内客户，并在大部分案例中为客户赢得积极结果。 于2004年开始在合伙制律所执业之前，他曾担任 多家国内及跨国公司的法律顾问，主要为反倾销、 反补贴和保障措施等国际贸易摩擦提供补救措施。 他还曾担任上海中级法院法官，负责公司和商务案 例的裁决。 Haiwen
Jun He
Haiwen loses partners to Jun He in Shanghai Jun He and Haiwen & Partners are both regarded as top-tier legal service providers by their clients and peers. However, the Haiwen Shanghai office recently lost two senior partners to Jun He. Fei Ning, former managing partner of Haiwen Shanghai office, and Huang Song, former Haiwen partner, have joined Jun He Shanghai as partners. Fei Ning’s practice range spans domestic and foreign commercial dispute resolution, arbitration, litigation, and mediation, and also acts as an arbitrator for CIETAC. Huang Song has expertise in foreign investment, M&A, and venture capital investment. He is also an expert in electronic commerce and internet-related legal issues. Also joining Jun He recently was dispute resolution specialist Liu Honghuan, who is now a partner in the Jun He Beijing office. Prior to joining Jun He, Liu was the head of litigation and arbitration practice group in Zhonglun.
海问上海分所两名合伙人转投君合 君合与海问律师事务所均被客户和同业誉为一流法 律服务提供商。然而，海问上海办公室的两名高级合 伙人近期转投君合。 海问上海分所前管理合伙人费宁和海问前合伙人黄 松以合伙人身份加盟君合。 费宁的执业领域横跨国内外商业纠纷解决与仲裁 以及诉讼和调解，他同时担任中国国际经济贸易仲 裁委员会仲裁员。黄松的专长领域为外商投资、并 购及合资公司投资，另外他也是电子商务和网络法 律问题专家。 另一位近期加盟君合的是争端解决专家刘虹环，现 为君合北京办事处的合伙人。此前，刘虹环是中伦金 通诉讼和仲裁部的负责人。 various
Gaopeng
Gaopeng & Partners adds three lawyers Gaopeng & Partners has appointed Wang Jun and Yi Jian as partners and Wang Tao as senior counsel. Wang Jun joined the firm from Beijing Zhengtai law firm, where he served as the vice head of the international investment and trade department. IBM, Global Finance Group, Avaya, China Everbright
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Bank, China Development Bank and The People’s Bank of China are among the clients he has advised. Yi Jian joined from Beijing Zhanda and had served as in-house counsel in Stateowned enterprises, foreign-invested companies and government offices before he moved into private practice. His corporate practice has a focus on real estate sector. Senior counsel Wang Tao is a heavyweight addition to the firm’s WTO practice group. Before joining Gaopeng, he had served as the deputy director of the law and training department in the China Chamber of Commerce for Import & Export of Textiles for nearly seven years. He excels in representing Chinese exporters in overseas anti-dumping cases.
高朋新增三名律师 高朋律师事务所上月聘任王军和易健为合伙人，王 涛为高级顾问。 加盟高朋前，王军曾担任证泰律师事务所国际投 资和贸易部副主管，服务过的客户包括IBM、Global Finance Group 、Avaya 、中国光大银行、国家开发 银行和中国人民银行。易健则曾任职北京展达律师事 务所。自1993年开始执业以来，他先后担任多家国有 企业、外资企业、民营企业和政府部门的法律顾问。 他具有丰富的房地产和公司法律服务工作经验，并致 力于帮助企业建立良好的法律框架和公司治理结构。 同时，高级顾问王涛的加盟将对该所国际贸易法方 面的业务拓展起到重要的推动作用。此前，他一直在 中国纺织品进出口商会法律部工作，任法律部副主任 近七年，多次组织纺织行业应对国外反倾销、保障措 施、特保等国际贸易壁垒，拥有丰富的应对经验和卓 越的组织协调能力，曾多次获商务部嘉奖。 O’Melveny & Myers
Davis Polk & Wardwell
Howard Zhang leaves OMM for Davis Polk Former managing partner of O’Melveny & Myers’ Beijing office Howard Zhang has joined Davis Polk & Wardwell as a Howard Zhang partner in Beijing. Zhang is reputed for his expertise in venture capital and private equity transactions. At his new role in Davis Polk, he will advise clients on cross-border securities, M&A and strategic investment transactions. Davis Polk’s Beijing office opened in February 2007 and is headed by partner Show-Mao Chen. The firm was lead counsel for the Industrial and Commercial Bank of China (ICBC) on its US$21.6bn dual-listed initial public offering, the largest IPO in history. It also advised ICBC on a US$3.78bn investment by Goldman Sachs, Allianz Group and American Express.
Howard Zhang加入Davis Polk 美迈斯 (O'Melveny & Myers) 北京代表处前管理 合伙人Howard Zhang以合伙人身份加盟Davis Polk & Wardwell北京代表处。 Zhang以其在风险资本和私募股权交易方面的专 长而著称。加盟Davis Polk之后，他将主要向客户提 供与跨境证券、并购和战略投资交易有关的法律顾 问服务。 Davis Polk的北京代表处于2007年2月开业，由合 伙人Show-Mao Chen 负责。 该所为有史以来全球最大的IPO —— 中国工商银行 216亿美元的首次公开招股 —— 担任首席顾问，还 曾就高盛、安联集团和美国运通投资的37.8亿美元为 中国工商银行提供法律服务。 Paul Hastings
O’Melveny & Myers
Structured finance specialist joins O’Melveny Neil Campbell, former chair of the Asian securitisation practice at Paul Hastings in Hong Kong, has made a move to O’Melveny & Myers to take advantage Neil Campbell of the firm’s reputation for doing innovative legal work for brand name clients. Campbell brings an impressive track record of handling large and novel securitisation and structured finance transactions to O’Melveny. His finance work will bolster O’Melveny’s existing platform for serving key financial institutions and investment fund clients in Asian and UK markets.Campbell has practised in Hong Kong for 14 years, handling securitisations involving assets from throughout Asia, including Japan and Korea, as well as the US and the UK, secured finance transactions involving collateral sited in China, and traditional finance work. He joined Clifford Chance in London as senior assistant solicitor in 1992 and relocated to the firm’s Hong Kong office in 1994. In 1997, he moved to Sidley Austin as a partner, and in 2003 he joined Paul Hastings as a partner.
美迈斯赢得结构融资专家 美迈斯因善于向老牌客户提供创新性法律服务而 声名卓著，普衡律师事务所 (Paul Hastings) 香港 代表处前管理合伙人Neil Campbell因此转而加盟 美迈斯。 Campbell为美迈斯带来丰富的大型及超常规证券 化项目和结构性融资交易经验，其在公司融资方面 的雄厚实力将强化美迈斯的现有平台，使该所能为 亚洲和英国市场的主要金融机构和投资基金客户提 供更高水平的服务。 Campbell拥有14年的香港执业经验，经手的证券 化项目所涉资产来自包括日本和韩国在内的亚洲各国 以及美国和英国，他也曾处理过抵押物位于中国的担 保融资交易， 以及传统金融交易。 Campbell于1992年加入伦敦的高伟绅，担任高级
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律师助理，于1994年调职至该所的香港办事处。1997 年，他以合伙人身份加盟盛德，后于2003年，以合伙 人身份加入普衡。 CMS Hasche Sigle
German firm appoints first local partner Leading German firm CMS Hasche Sigle has showed its commitment to China by promoting a Chinese nationality associate to its partnership. Colin Liu, the new partner, is the first local partner appointed by the firm in Shanghai. Liu has been part of the core team at the Shanghai Office for five years and his areas of expertise include foreign direct investment, anti-trust law, international arbitration and intellectual property. “We’re making a statement regarding the professional opportunities for our Chinese lawyers and colleagues,” said Ulrike Glück, Equity Partner in charge of the Shanghai Office, commenting on Liu’s appointment. Before joining CMS Hasche Sigle in Shanghai, he practised law at several other large international law firms. In 2007, Liu was seconded to the Stuttgart Office of CMS Hasche Sigle in Stuttgart for several months.
德国律所在沪委任首位本地合伙人 德国律师事务所CMS Hasche Sigle 将一名中国 籍律师晋升为合伙人，彰显出其欲在中国开拓市场 的决心。新合伙人Colin Liu 是该所上海代表处委任 的首名本地合伙人。 Liu在上海办事处任职五年，为核心团队的成员之 一，其专长领域包括外商直接投资、反垄断法、国际 仲裁和知识产权。 负责上海代表处的合伙人Ulrike Glück 说道，“我 们以此表明中国籍律师和同事在本所任职所享有的 职业发展机遇。” 加盟CMS Hasche Sigle上海代表处之前，Liu曾先 后在其它若干大型国际律师事务所任职。2007年， 他曾被临时调派至CMS Hasche Sigle 的斯图加特 办事处，驻职几个月。
A few months later, the firm has appointed Chelsea Li be a resident partner in its Beijing office. Fluent in English and Mandarin, Li has substantial China experience in telecoms and IT-related law and has worked on a wide variety of transactions in these sectors over eight years. Her broader experience lies in licensing, commercial transactions and regulatory work. During her time as an in-house legal counsel, Li worked on a variety of major projects and complex telecom/IT projects, including engineering/operation system upgrades and services, submarine cable network constructions, upgrades and maintenance, telecom cable landing stations, point-to-point telecom services and co-location services. In private practice and as an in-house legal counsel, Li has advised multinational companies such as China Mobile and China Netcom and a wide range of other companies and their subsidiaries in China and the Asia-Pacific region.
Allen & Overy
A&O expands international capacity With 28 promotions to partners across Allen & Overy’s 15 offices in 13 countries around the world, the firm’s total number of partners has reached 505 globally, exceeding the 500 mark for the first time. The promotions highlight A&O’s continued investment in its international network. Over 70% of the new partners come from outside of London, and one quarter of the new partners are also located in emerging market offices such as Shanghai, Bangkok, Dubai, Moscow and Warsaw. As well as a wide geographic spread, the promotions also demonstrate stable investment in A&O’s key market sectors with promotions across six different practice groups globally. Four of the 28 new partners are based in the Greater China region, including two in Shanghai and two in Hong Kong.
公平氏巩固在京业务
安理全球合伙人规模超过500
随着中国超越日本和美国成为澳大利亚最大的贸 易伙伴，总部位于悉尼的公平氏律师事务所正积极 加强其在中国的业务。 2007年底，该所与德国律师事务所Brandi Dröge Piltz Heuer & Gronemeyer (BDPHG) 建立联盟，以 共同开发中国业务。几个月后，该所聘任李乔姗律 师担任其北京代表处的常驻合伙人。 李律师能说流利的英语和汉语，熟谙与电信和IT 相关的法律问题，在八年间，曾经手处理过这些领 域的各种交易，并在特许授权、商业交易和合规方 面有着颇为丰富的经验。
随着安理国际律师事务所遍及世界13个国家的15 个办事处共28名律师获晋升为合伙人，该所的全球 合伙人达到505人，首次超过500人大关。 此举彰显安理对国际网络的持续投资。在新合伙 人中，超过70%来自伦敦以外地区，四分之一位于 上海、曼谷、迪拜、莫斯科和华沙等新兴市场代表 处，涉及地域较广。此外，获晋升的合伙人来自全 球六个不同的执业团队，显示安理持续投资关键市 场领域的目标策略。 28名新合伙人中有四人位于大中华区，上海和香 港各有两人。
Gray & Perkins
Gray & Perkins strengthens Beijing presence With China taking over Japan and the US to be Australia’s largest trading partner, Sydney-headquartered firm Gray & Perkins is actively gearing up its practice in China. At the end of 2007, the firm entered into an alliance with German law firm Brandi Dröge Piltz Heuer & Gronemeyer (BDPHG) to develop Chelsea Li joint activities in China.
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SPECIAL REPORT ALB SHANGHAI
ISSUE 5.4
ALB ASIAN LEGAL BUSINESS
Despite the turmoil in the global markets and a looming recession in the US, law firms in Shanghai are profiting from the spike in corporate activity. Prospects for the local legal industry remain sound and strong, ALB China reports
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SHANGHAI
Shanghai shines amid global turmoil
W
hen many of the world’s major economies are being affected by the global credit crunch, it seems to be a less-than-ideal time for this year’s special report on Shanghai. Although economists indicate that the turmoil in the global markets is having a limited and indirect impact on China, Shanghai is feeling the pinch as it transforms into an international financial hub. The Shanghai index has plunged more than 45% from its high in October 2007, putting the once red-hot market among the world’s worst performers. Some QDII funds have reported large losses due to volatility in the world market. There has been a slowdown in the rate that new QDII products and IPOs have been launched. Multinational companies and international financial institutions’ shortage of capital at home may lead them to reduce their investment and business activities here. Export-oriented companies may face a drop in demand caused by a possible US recession and the shipping industry may see a decrease in contracts as a result. Given these difficult market conditions, it would be reasonable to predict that a downturn in economic activity may impact the bottom line for law firms and dampen their willingness to share with ALB their perspectives on the local legal industry. However, after speaking to a number of legal practitioners in Shanghai, ALB’s concern has been allayed. The legal fraternity in Shanghai, which has more skyscrapers than New York and a public transport system that will soon overtake London’s in size, is looking at 2008 with more optimism than are their counterparts in those two cities. “Share price falls, further appreciation of RMB, and a possible recession don’t mean a drop in deal flow,” says Hubert Tse, managing director of Yuan Tai and head
of the firm’s international business group. “On the contrary, it provides opportunities for foreign investors to purchase shares in domestically listed companies and invest in RMB-denominated assets to increase their value as RMB appreciates.” In addition, as assets in the US become more affordable, lawyers predict an increase in overseas M&A activity by domestic companies. Amid the gloom in the global market, there are signs of hope. The continuing economic growth is driving an increasing number of international firms to expand into China. Statistically, Shanghai remains the most popular choice for foreign firms to enter the country for the first time, and it is still the top city in terms of the number of representative offices of international firms. “Things are becoming more competitive, but by the same token, with the economy still doing relatively well, there are just lots of opportunities for both foreign law firms and Chinese law firms. These are pretty good days to be practising law in Shanghai,” says John Grobowski, who practised in Shanghai with Baker & McKenzie for 17 years and now enjoys a new set of challenges and opportunities as the head of Faegre & Benson’s Shanghai office.
Pillars of prosperity With the local economy going from strength to strength, the question of whether the US sub-prime crisis will have any impact on Shanghai no longer matters to the legal sector. Home to over 3,500 banks and the country’s largest stock exchange, Shanghai has been firmly put on the map as one of China’s main economic powerhouses. Its confidence and success rests on two pillars: banking and finance. In 2007, the PRC banking industry experienced much reform and restructuring, and became more open to foreign investors. Many Shanghai firms have
SHANGHAI AT A GLANCE • Number of PRC lawyers: 8,138 • Number of PRC law firms: 759 • Number of representative offices of foreign law firms: 88 • Number of representative offices of Hong Kong firms: 16 • Number of regional headquarters of multinational companies: 174 • Shanghai-headquartered Fortune 500 companies: 3 Source: Shanghai Bar Association, as at 30 July 2007
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ALB SPECIAL REPORT
ISSUE 5.4
SHANGHAI
“The legal service market in Shanghai is very large and growing very quickly, with a tremendous amount of potential and opportunity … To gain a foothold in the market, mid- to smallsized local firms have to develop their own niche practices and find the right market segment”
George Wang, Jun He Law Offices
built on their relationships with domestic and international banking clients and have followed closely the development of business in traditional and emerging product lines. Jun He Law Offices’ Shanghai office has reinforced its leadership in the banking sector by representing major banks in financing transactions totalling more than US$30bn, including acquisition finance, project finance, structured finance, asset finance and trade finance transactions. “Jun He Shanghai office has achieved another banner year, especially in the banking area. Although tight monetary policy will continue in 2008, the pipeline of lending and financing deals will remain strong,” says George Wang, partner with Jun He. As more foreign banks become locally incorporated, their demand for PRC legal services will continue to grow. “All the new law, particularly new property law and bankruptcy law, will have a significant influence on both international and local financial institutions,” says Charles Qin, founding partner of banking and finance boutique firm Llinks Law Offices. “Increasingly, they will need local counsel to advise them on regulatory and compliance reviews and on their consultation with the government authorities on general and specific issues.” Another trend witnessed by finance specialists such as Llinks and Yuan Tai is the rise of the funds management industry in Shanghai. In recent years, both firms have advised foreign and local banks and insurance companies on establishing joint venture and domestic funds management companies (FMCs), and have acted on FMC investments at home and overseas. “With more QDII and QFII licences being approved and the investment quota expanding, the funds management industry is a fast-emerging and cuttingedge practice area for Shanghai firms,” says Qin. “The amended Partnership Enterprise Law allows fund managers to adopt a more flexible investment structure and helps the industry to grow in strength and sophistication.” Currently, there are 60 FMCs, half of which are joint ventures with foreign fi-
nancial institutions. Twenty have secured their QDII qualifications. Yuan Tai’s funds practice has a focus on QDII. The fi rm enjoys a large share of the market. It has advised China Southern Fund and ICBC-Credit Suisse AMC on their first QDII product launches and is currently advising 10 other leading domestic and joint venture FMCs on their QDII applications. “Despite the volatility in the world market, the pace of growth of QDII funds will not be hampered. The QDII scheme is the government’s long-term investment strategy, so there will be more opportunities for dedicated funds management law firms to participate in this visionary outbound investment program,” says Tse. In addition, the three sovereign wealth funds (SW Fs) – China Investment Corporation, National Social Security Fund and China-Africa Development Fund – are reportedly planning to outsource a combined US$320bn to foreign asset managers over the next three years, according to a report by Z-Ben Advisors, experts on China’s investment management industry.
TOP FIVE SHANGHAI OFFICES OF BEIJING-HEADQUARTERED FIRMS BY SIZE Firm
Managing partner
King & Wood Zhong Lun Dacheng Jun He Zhongzi
Zhang Yi
Number of qualified lawyers 65
Qiao Wenjun Xiao Jinquan Li Qi Sun Junbao
Source: Shanghai Bar Association, as at 30 July 2007
TOP FIVE SHANGHAI FIRMS BY SIZE Firm
AllBright Grandall Shanghai Jin Mao Brilliance Zhenghan
Managing partner
Number of qualified lawyers Shi Huanzhang 155 Guan Jianjun 74 Wu Boqing Yu Jianguo Wu Yugang
Source: Shanghai Bar Association, as at 30 July 2007
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60 59 40 18
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SHANGHAI
A
llBright has acted on Shanghai Industry Holdings Limited’s (“SIHL”) successful acquisition of Shanghai Urban Development (Holdings) Co., Ltd. (“SUDH”) which is the biggest wholly state-owned real estate development enterprise in Xuhui district of Shanghai. SIHL finally obtained a 59% equity interest of SUDH on 25th December 2007 with the total cash consideration amounting to RMB 3.7Billion via two steps (first, 40% equity interest capital increase and second, equity transfer).
“The transaction is regarded as the largeset real estate M&A in Shanghai 2007.” SIHL (HKSE stock code “363”) was listed on the Stock Exchange of Hong Kong on 30th May 1996. The majority shareholder of SIHL is Shanghai Industrial Investment (Holdings) Co., Ltd (“SIIC”). Under the auspices of the Shanghai municipal government, SIIC incorporated in Hong Kong as a commercial entity in 1981. It is currently the largest and most resourceful overseas enterprise established by the Shanghai municipal government. With the shareholders’ equity being HK$17.505 billion and turnover amounting to HK$6.851 billion in 2006, SIHL is the flagship in the SIIC group of companies now. With total assets exceeding RMB11 billion, SUDH has a land bank of more than 2 million square meters of gross floor area, including commercial and residential development projects of strategic value located in Shanghai, Kunshan in Jiangsu, Changsha in Hunan and Hefei in Anhui. Among them are “Xujiahui Centre” and “Urban Cradle”. “Xujiahui Centre” takes up 13.2 hectare with the total estimated area more than 630,000
square meters which so far is one of the largest comprehensive commercial projects in downtown Shanghai. “Urban Cradle” takes up 94.3 hectare with the total surveyed area being about 830,000 square meters which is the largest residential project in the middle ring road territory of Shanghai. The M&A Project is so complicated as result of transferring Chinese state-owned rights and interests, and foreign capital’s taking over a native Julia Y. Zhu real estate company. In addition, the purchaser who is a company listed in HKSE shall conform to the rules of HKSE. Meanwhile, relevant regulation on takeover of domestic company by foreign-funded enterprises was revised and policy restricting the foreign-funded enterprises to enter real estate industry came into being during the term of the M&A in China. AllBright’s M&A team, led by senior partner Julia Zhu, joined the M&A Project since the end of May, 2006 and provided with the whole legal services including but not limited to LDD, participating in several rounds negotiations, drafting agreements, and rendering several Chinese Legal Opinions during the term of more than one year and a half. Allbright was also entrusted by respective parties to submit to examinaton and approval authorities for approval and complete the alteration procedure with the Industrial and Commercial administration. Julia Y. Zhu Senior Partner, ALLBRIGHT LAW OFFICES 14/F, Citigroup Tower, 33 Hua Yuan Shi Qiao Road, Pudong New Area Shanghai P.R. China 200120 Tel: 86-21-61059098, 86-21-61059000 Fax:86-21-61059100 E-mail:juliazhu@allbrightlaw.com
FIRM PROFILE
AllBright Steers Shanghai real estate M&A by foreign capital of the year
锦天城成功经办上海年度最大的外资并购房地产案
锦
天城律师事务所为上海实业控股有限公司并购上海市徐汇区最大 的国有房地产开发企业――上海城开（集团）有限公司提供全程法 律服务。上实控股通过先增资40%，再股权转让两个步骤，于 2007年12月25日成功获得上海城开59％的股权，整个交易金 额上实控股为此总共付出了人民币约37亿元的对价，该项目为2007年度上海 最大的一宗外资并购房地产案。 上实控股为香港联交所上市公司，股票编号（0363,HK），1996年5月30日 在香港联合交易所上市。上实控股的控股股东是上海实业 (集团)有限公司，上实 集团是上海市人民政府于1981年在香港注册成立之商营企业，也是上海市在海 外最大的综合性企业集团。上实控股作为上实集团的旗舰企业，2006年年底净 资产值175.05亿港元,全年营业额约68.51亿港元。 上海城开拥有多个具战略价值的重大商业和住宅地产项目，总资产目前超过 人民币110亿元，可开发建筑面积超过200万平方米，分布上海市、江苏昆山、 湖南长沙和安徽合肥等地，其中最具价值的包括「徐家汇中心」及「万源城」 。“徐家汇中心”项目占地13.2公顷，总规划建筑面积约63万平方米，是迄今为
止上海市中心最大的综合性商业项目；“万源城”项目占地94.3公顷，总建筑面 积约83万平方米，是上海市中环线内面积最大的住宅项目。 本项目同时涉及国有产权转让、外资并购房地产公司、收购方作为香港上 市公司还必须符合香港上市规则要求，并且收购期间恰逢国内外资购并法规的 修订以及出台多项限制外资进入房地产行业的政策，整个并购过程非常复杂。 由高级合伙人朱颖律师率领的锦天城服务团队，自2006年5月底进场，历时一 年半，为收购方上实控股提供了全程法律服务，包括出具尽职调查报告、参与 多轮谈判、起草相关交易文本，以及出具股权受让、标的公司物业权属等多个 中国法律意见书。锦天城还受交易各方委托, 代为办理了向审批机关报批和工 商变更手续。 朱颖 律师 高级合伙人 上海市锦天城律师事务所 上海市浦东新区, 花园石桥路33号, 花旗集团大厦14楼, 邮编：200120 Tel: 86-21-61059098, 86-21-61059000 Fax:86-21-61059100 E-mail:juliazhu@allbrightlaw.com
31
ALB SPECIAL REPORT
ISSUE 5.4
SHANGHAI
Law firms in Shanghai are well placed to represent international and local fund managers in the outsourcing process. The symbolic Jin Mao Tower in Pudong financial district will soon be eclipsed by a new building nearby – the Shanghai World Financial Centre. The 101-storey, 492-metre high building will be the tallest building in Asia and a new symbol of Shanghai’s rise to prominence as Asia’s international financial centre.
Market segmentation
“With more QDII and QFII licences being approved and the investment quota expanding, the funds management industry is a fast-emerging and cutting-edge practice area for Shanghai firms”
Charles Qin, Llinks Law Offices
32
The leaders among firms in Shanghai remain largely unchanged; Jun He, King & Wood, Zhong Lun Law Firm and Fangda Partners still enjoy a relatively large share of the high-end legal service market. However, Shanghai’s unique entrepreneurial culture provides other firms with an abundance of work, especially in the M&A, securities, construction and dispute resolution arenas. The local business community has seen the rise of a number of home-grown corporate and commercial firms including Grandall Legal Group, Chen & Co, Boss & Young, J&F PRC Lawyers, Llinks, HaoLiWen and Zhenghan. Unlike Beijing, where the legal market is consolidating and mergers between firms frequently take place, the distinct characteristic of the current Shanghai legal sector is that firms are specialising. The past few years have seen a number of law firms split. Examples are easy to think of: last year, the tax and finance department of Co-Effort Law Firm left to set up tax boutique Zuo Quan; three partners departed the Shanghai offices of Commerce & Finance and Jingtian & Gongcheng to set up a private equity-focused practice named Han Yi; two international practice-oriented partners left AllBright and established MWE China in 2006; and a team of partners left Zhong Lun Shanghai office and founded finance boutique Yuan Tai in 2004. Nevertheless, there still are one or two examples of consolidation among Shanghai firms, including the merger between shipping firms Sloma & Co and Siway & Seaway in September last year. “The legal service market in Shanghai is very large and growing very quickly, with a tremendous amount of potential and opportunity. But the high-end market is remarkably competitive and most of the large restructuring, IPO, FDI and banking transactions are dominated by
Beijing firms’ Shanghai offices,” says George Wang of Jun He, commenting on the reality in a matter-of-fact way. “But as the corporate sector and financial market become increasingly dynamic, the need for specialist legal services is growing. To gain a foothold in the market, mid- to small-sized firms have to develop their own niche practices and fi nd the right market segment.” There is no denying that most of the new firms are focusing on one or two specialty areas. Larger firms that are flourishing are the ones who have found their niche and have dedicated their resources and expertise to particular needs of clients. Grandall, with its top-notch capital markets practice, and Zhenghan, with a sound reputation in commercial dispute resolution, are just two of the many. The increasingly capable in-house teams with in-depth local knowledge have engineered the recent changes in private practice. “Many multinational companies in Shanghai have hired local private practitioners to head their in-house teams – local firms have been benefiting from that,” says Zhao Deming, managing partner of HaoLiWen. “Local firms are winning more mandates from these localised in-house departments not because of ‘guanxi’, but because these in-house lawyers understand the local legal system well, know who the most competent service providers are in certain areas and are able to manage external counsel efficiently.” Llinks’ Charles Qin agrees with Zhao, saying that the increasingly sophisticated regulatory environment coupled with senior in-house counsel’s previous private practice experience is pushing the legal profession forward to reflect the increasing diversity of legal services needs. “A large number of in-house counsel have private practice experience and some have worked in both local and international firms. They know very well how law firms or external legal counsel team work, and have a good grasp of the marketplace in terms of who are the leading firms in different practice areas,” says Qin. “In-house counsel are more often having to turn to external counsel for legal advice, because the regulatory environment and legal system is becoming more sophisticated and specialised. In some large projects, in-house counsel will appoint a number of firms, each having different expertise, to act for them.”
ALB SPECIAL REPORT
www.asianlegalonline.com
SHANGHAI “Local firms are winning more mandates from localised in-house departments of multinational companies. It is not because of ‘guanxi’, but because these in-house lawyers understand the local legal system well, know who the most competent service providers are in certain areas, and are able to manage external counsel efficiently”
Dutch chemicals group DSM’s China regional headquarters in Shanghai has one of the in-house departments that has mastered that know-how. Last year, Catherine Wang was appointed as the general counsel for the Greater China region, a new position the company created in light of its fast-expanding China business. “Our company’s long-term investment strategy and growing commitment in China will spark a large amount of M&A transactional, corporate restructuring and JV establishment work across the country,” says Wang. To deal with this activity, Wang keeps a good-sized in-house team, consisting of seven staff. This enables her to build a substantial knowledge base within the company. However, DSM’s expansion plan has meant that Wang has to rely on external counsel for certain types of transactions. When she outsources work, she likes to know exactly where it is going and, in deciding where to send work, she looks at her previous dealings with an individual partner, not at a firm’s reputation.
Zhao Deming, HaoLiWen PRC Attorneys
Counterfeit Product Sales:
Criminal Remedy in China location, if it finds out that the infringer has knowingly sold counterfeit products with the sales amount of not less than RMB 50,000 through investigation. II. Procedural Matters Report to the PSB and Case transfer. After the PSB has concluded the investigation, it shall transfer the case to the people's procuratorate with a recommendation to initiate prosecution. If the people's procuratorate considers that (1) the facts of the infringer's crime have been ascertained; (2) the evidence is sufficient and (3) the criminal liability should be investigated according to law, it shall make a decision to initiate a prosecution and shall initiate a public prosecution at court. In case where the infringer is a company, the court may sentence the person-in-charge directly responsible and other persons directly responsible within the company to fixed-term imprisonment of not more than three years or criminal detention, and fine the infringer company concurrently or independently, if the sales
Zhang Yan, Senior Partner
amount of the counterfeit products is not less than RMB 50,000. If the sales amount of the counterfeit products is not less than RMB 250,000, the court may hold personin-charge directly responsible and other persons directly responsible be criminally liable by way of imposing a fixed-term imprisonment of not less than three years but not more than seven years and fine the infringer company concurrently. Direct lawsuit. If the infringer is found guilty, the court shall render the same judgement as outlined in 1. Report to the PSB and Case transfer.
FIRM PROFILE
I. Provisions and Initiation of Criminal Proceedings In accordance with Article 59 of the PRC Trademark Law, Article 214 of the PRC Criminal Law and relevant judicial interpretations, any individual or enterprise knowingly selling counterfeit products with the sales amount of not less than RMB 50,000 shall be investigated for criminal offences. There are three ways by which the criminal proceedings may be initiated: 1. Report to the Public Security Bureau (“PSB”). The claimant may file a statement of complaint with the PSB in the place where the crime was committed, or in the place where the infringing party resides; 2. Direct lawsuit. The claimant may sue the infringing party at a court (this is called the “private prosecution”) in the place where the crime was committed, or in the place where the infringer resides; or 3. Case transfer. The Administration for Industry and Commerce (“AIC”) may transfer a case to the PSB in the same
ZHANG YAN, Senior Partner Haoliwen PRC Attorneys zhangyan@haoliwen.com
33
ALB SPECIAL REPORT SHANGHAI
34
ISSUE 5.4
ALB SPECIAL REPORT
www.asianlegalonline.com
SHANGHAI
“We use different firms in different projects dealing with different issues,” says Wang. “We use these firms because particular partners are there. If these partners swap firms, we’ll follow them.” Leading global management and technology consulting firm BearingPoint has another of the many outstanding in-house teams in Shanghai. The team is headed by Zhen Tan, general counsel for Greater China, who also served as regional compliance officer for BearingPoint in the Asia-Pacific region. “Our in-house team can effectively manage routine legal matters. We get very good value from our internal lawyers,” says Tan. “But we need external expertise when certain sophisticated transactions come along.” Tan keeps a panel list of firms with particular specialties and reviews it on a regular basis. He adds more firms as his company’s business expands to new areas. Tan knows private practice well, as he practised with King & Wood for many years prior to moving in-house. His understanding of private practice enables
him to keep an effective control over the work he sends out. Having worked with many firms in Shanghai, Tan views their services positively. “Shanghai local firms are strong in government relations advisory. They act as a bridge between multinationals and the local government. They are hard-working, conscientious and solution focused.”
Shanghai embraces more international firms With a slowdown in the economies of many countries and a possible US recession, China has become a good investment destination choice for international investors. In the same way multinationals continue to expand into China through Shanghai, so too do foreign firms from all over the world. The influx of new foreign firms coming to Shanghai is seemingly unstoppable. In the past two months alone, several firms, including US firms Miller, Canfield, Paddock and Stone, and Kirkpatrick & Lockhart Preston Gates Ellis, as well
INTERNATIONAL FIRMS IN SHANGHAI Origin PRC US Hong Kong UK Japan Singapore Australia Germany France Spain Korea Other
Number of firms 759 32 16 15 8 7 6 6 5 2 1 6
Source: Shanghai Bar Association, as at 30 July 2007
35
ALB SPECIAL REPORT
ISSUE 5.4
SHANGHAI
as Spanish firm Cuatrecasas, have announced that they are applying for a licence to open an office in Shanghai. A large number of representative offices opened in 2007. New arrivals include Heller Ehrman, Foley & Lardner, Greenberg Traurig, Sheppard Mullin Richter & Hampton, and Skadden, Arps, Slate, Meagher & Flom. “All international firms with offices overseas will look to China as a very important part of their international plan and will want to take advantage of the growth. So foreign firms are still coming in and the ones doing well here are trying to expand,” says John Grobowski. Spanish firm Garrigues opened its first China office in Shanghai in 2005 and business has been buoyant. Shanghai ma nag ing pa r tner F ra ncisco Soler indicates that his firm will apply for a licence to launch an office in Beijing in due course, but he still regards Shanghai as a slightly more preferable destination for many foreign law firms. “Shanghai is the fi nancial capital of the country with a large number of foreign and Chinese banks and fi nancial institutions, and it is surrounded by many first-rate industrial parks. Many
36
Spanish and Latin American industrial companies have landed in Shanghai and the Yangtze River Delta region, so we followed,” says Soler. “There are still many more foreign companies in Shanghai than in Beijing, even though the number is growing fast in Beijing. Sometimes, deals in Beijing may be bigger, but there are more companies in Shanghai that require day-to-day legal advice from law firms,” Soler adds. Many of Garrigues’ clients in Shanghai are medium-sized companies. They are growing fast, but are not yet large enough to require full-time in-house legal counsel. This has resulted in the soaring demand for external legal support from firms like Garrigues. Currently, 90% of Garrigues’ Shanghai office’s clients are Spanish and Latin American companies doing business in China. The remaining 10% is comprised of Chinese companies investing abroad – mainly mining and natural resource companies investing in South America. Soler expects the revenue from advising Chinese companies’ outbound investment to increase steadily in the coming years. Although the market is getting more crowded and competitive due to an in-
creased number of competitors, foreign firms still see opportunities to grow. Although he only started working at Faegre less than three months ago, Grobowski has already outlined the firm’s agenda for expansion. Grobowski notes that the Shanghai team will move into new office space, which is three times bigger than the current one, and the headcount in Shanghai is expected to double to more than 50 in the next two years. In addition, he plans to broaden their practice areas from corporate and commercial. “We’re planning to bring in senior professionals, probably at partner level, to drive much more growth in areas of IP, tax and banking & finance,” says Grobowski. In-house counsel in Shanghai are welcoming the arrival of new firms and the expansion of foreign firms. To in-house lawyers, international firms can not only provide more choice and diverse services, but can also share their expertise with the local profession. “It is a very positive thing that international firms continue coming to Shanghai. The personnel movement can distribute some expertise and know-how acquired by international lawyers to local in-house counsel and local law firms,” says Tan.
ALB SPECIAL REPORT
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SHANGHAI “There are still many more foreign companies in Shanghai than in Beijing, even though the number is growing fast in Beijing. Sometimes, deals in Beijing may be bigger, but there are more companies in Shanghai that require day-to-day legal advice from law firms”
Francisco Soler, Garrigues, Shanghai
“Asian Legal Business has done a great job covering local news, deals, and general trends in the legal market in Asia” Sam Farrands, partner, Minter Ellison
CHINA
Asian Legal Business is Asia’s leading legal magazine. Published from three regional centres, each issue is packed with news, hard hitting analysis and investigative journalism. Regional editors provide up to the minute legal and regulatory updates, while a team of dedicated journalists provide in-depth analysis of all the issues facing lawyers and in-house counsel throughout the region.
“Having a strong, international legal industry is indispensable if Shanghai wants to establish itself as a regional business and financial centre,” he continues. Regarding the question of which city is the business and financial centre in Asia, the rivalry between Shanghai and Hong Kong is no secret. At the moment, Hong Kong may maintain a lead over Shanghai, but few would deny that Shanghai will eventually overtake its competitor. ALB
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37
IN-HOUSE SURVEY
asian legal business ISSUE 8.4 5.4
In-house counsel mind their own business
36 38
ALB In-House
IN-HOUSE SURVEY
www.asianlegalonline.com
Gone are the days when in-house counsel played second fiddle to management or relied on external counsel for the bulk of their legal advice. Today’s in-house teams are taking firm control of their legal risk, and are increasingly discerning in their choice of law firms
G
illian Meller is experiencing an in-house evolution. As general manager of legal at Hong Kong’s mass transit railway operator MTR Corporation, Meller presided over the group’s merger with fellow state-owned railway company KCRC last year. The melding of two legal teams has forced her to take a fresh look at what it means to be in-house. “It’s a bit like the story of the blind men and the elephant,” Meller says. “Everyone can describe a little bit of the role, but it’s hard to see the whole picture properly.” But that is changing. Meller says the in-house function at MTR Corporation is fast becoming more holistic and strategic. “We aren’t just dealing with contractual issues as they arise, but trying to take a proactive role and adding value to the business as legal risk managers.” In fact, Meller says this evolution of the department is now her key management brief. “The first thing is really defining what the role of the in-house team is, and the second is delivering on that,” Meller explains. “I have to prove we can add more value by knowing the business and providing sound commercial advice – not just legal solutions.” Samantha Chia, Singapore-based head of legal and compliance for Nokia Siemens Networks, has also seen her in-house role shapeshift as a result of a merger. When Nokia and Siemens announced they would combine their mobile and fixed line phone network equipment businesses in 2006, little did either group know that a very public corruption and bribery scandal was about to engulf Siemens in Germany, forcing management to place renewed attention on a fast-growing area for in-house counsel – compliance.
Issues Survey
39
IN-HOUSE SURVEY
ISSUE 5.4
In-house teams in Asia How many in your in-house team? 50+ 4% 26–50
5.7%
63.6%
21–25 3.4% 16–20
1–5
1.7%
17.6%
11–15 4%
6–10
Your in-house team is:
40% Growing 11%
Contracting
49%
Stable
Your legal work is increasingly:
28%
No change
14%
58%
Done in-house
Proving the value of in-house counsel
Outsourced
Your legal team sits:
67%
As a central team
40
“I didn’t know how widespread these issues were, as it’s something quite new for us,” Chia says. However, discussions with in-house and compliance counsel at an anti-corruption summit in Hong Kong this year revealed otherwise. “Anti-corruption and compliance are a huge concern for many companies, and particularly those who do business in the US or have US parents, as they’re subject to the Foreign Corrupt Practices Act and Securities Paramjit Dhillon, Total Sports Asia and /or the Exchange Commission (SEC) rules,” she says. Chia reveals that now her most pressing task is to appoint a compliance counsel. The stories of these two leading in-house lawyers are revealing, and are echoed by their peers. The in-house function in Asia is fast becoming a more strategic, forward-thinking proposition, demanding that in-house general counsel become proactive managers of legal risk. Compliance issues is also a rapidly growing area of the mix. However, rather than shying away from the change, lawyers are stepping up to the plate. “As a result of the merger [MTR/KCRC] process, you realise you have a broader role – that of a trusted advisor,” Meller explains. “The thing that appeals to me about being in-house is being asked to produce legal judgments in this commercial context.”
33%
Within relevant business units
The majority of in-house legal teams in the Asia-Pacific region are either stable (49%), or growing in numbers (40%), according to the results of the ALB In-House Issues Survey. Only a precious few (11%) are actually contracting in the current business environment. Likewise, 58% of respondents say the proportion of legal work being done in-house is increasing, with only 14% saying they are increasingly outsourcing work. Team growth can be attributed to the booming economies and growing amount of legal work that is taking place in the region. However, there is another reason, say lawyers – companies are starting to see the value of in-house advice, which is the reason they are choosing to keep an increasing amount of legal work under their own roof. “Having a department in-house, as opposed to farming work out to law firms, is more cost-effective,” Chia argues. “Having a department right there also means they can easily handle the whole gamut of company legal issues.”
IN-HOUSE SURVEY
www.asianlegalonline.com
Counting the cost
Your annual legal spend is:
33%
No change
Your annual legal spend is:
Decreasing
7%
60%
Increasing
41% 17%
ALB IN-HOUSE SURVEY
6%
17% 7%
7%
5%
US$10m + US$5m–10m US$1m–5m US$500,000–1m US$250,000–499,999 US$100,000–249,999
US$10,000–99,999
Meller agrees, saying that companies are seeing the value lawyers can add to situations, and that legal spend targets define what can be outsourced. Paramjit Dhillon, vice president of legal and HR at sports marketing group Total Sports Asia in Malaysia, argues convenience is also a key factor. “They’re relying less and less on external lawyers because when they need you, you’re there,” she says. “We try and turn around documents in 24 hours, which is something you can’t get from external firms.” The survey also found that, alongside the growth of in-house legal departments, the majority of in-house teams have increased legal budgets to play with, as their total legal spend increases. Though in-house counsel do not appear to be looking to law firms for advice quite as much, legal spend figures show the size of the pie is growing in Asia, and there is no doubt that law firms are benefiting from this increased workflow.
What in-house lawyers want
“The first thing is really defining what the role of the in-house team is, and the second is delivering on that” GILLIAN MELLER, MTR CORPORATION
How could law firms best improve their service?
External counsel can no longer feel safe in simply providing clients recitations of existing law with no commercial overlay. In-house lawyers are increasingly demanding, and commerciality is their greatest concern. “While putting the commercial spin on things is our job, we don’t want external legal advice produced in a vacuum,” Meller says.
The ALB In-House Survey 2008 is a poll of the top general counsel and their legal teams across the Asia-Pacific region. Covering a variety of hot topics from external legal panels and legal spend to what in-house counsel are really demanding from their external legal providers, the survey presents a detailed and accurate picture of the in-house legal landscape in 2008. The results, tabulated and graphed on the following pages, is the region’s most up-to-date guide to the in-house lawyer’s mindset.
28%
31% 22%
Accessibility
19%
Commerciality Faster turnaround Gillian Meller, MTR Corporation
Accurate fee estimates
41
IN-HOUSE SURVEY
ISSUE 5.4
Panel views Do you have a specific external legal panel?
Yes 61%
No 39% However, when asked how their external counsel could most improve their level of service, significant portions of respondents also fell into each of the categories calling for increased accessibility, faster turnaround times and accurate fee estimates, showing in-house lawyers expect improvement across the board. “We look for good practical business-oriented advice – nothing too legalistic,” Chia from Nokia Siemens Networks says. “We’re also looking for fast turnaround times and value for money.” Providing a warning – or perhaps a glimmer of hope – for law firms in Asia, Meller says in-house lawyers “are less loyal to firms as a whole than they used to be”. While she has inherited existing relationships with Deacons, Slaughter and May, Lovells and Simmons & Simmons, as well as Mayer Brown JSM from the KCRC business, she argues the case that “individuals are more important” than the firm as a whole. Chia agrees: “We have some established relationships with firms from our time as Nokia, but we’re always on the lookout for good law firms and lawyers – we believe in healthy competition.” The ALB China survey results cement this idea. The majority of companies have a formal panel of external providers, with many in the 1–5 firm range. However, more and more are relying on a much broader talent pool of over 10 law firms. Most in-house counsel also review their panels regularly, giving newer players the opportunity to source work. Reflecting the point that it is the individual lawyer that counts, by far the most important criteria firms demand from their external counsel is specific legal expertise. A whopping 98% of in-house respondents to ALB China’s survey nominated specific legal expertise as essential when outsourcing their work. Dhillon from Total Sports Asia says the sports marketing group looks for specific expertise. “If we needed a sports lawyer, we would go to
Companies are starting to see the value of in-house advice, which is the reason they are choosing to keep an increasing amount of legal work under their own roof 42
How many firms are on your legal panel?
11% 1%
14%
11%
15% 25%
6% 2%
6% 1%
How often do you review your panel?
61% 30 %
No regular review
7%
Every year Every two years
1%
Every three years Every four or more years
1%
%
IN-HOUSE SURVEY
www.asianlegalonline.com
someone strong in their knowledge of sports law; if it was a labour dispute, we would go to a labour lawyer,” she says.
Private practice? Never again Most in-house lawyers say they would not consider moving into private practice. Though many have cut their teeth as associates, senior associates and even partners at private practice law firms, being closer to the heart of a business and giving commercial legal advice – with the added lifestyle advantages – is proving satisfying for most. “I didn’t really enjoy private practice,” Chia admits. “I wanted to be close to the business, and to contribute to those internal business decisions as a legal practitioner. You don’t see that very much in private practice – you may have a client come to you with a problem or issue, and you send off an opinion, but you would have to be lucky to be intimately involved in a project from start to finish,” Chia says. Dhillon says her eight years in private practice litigation were both “challenging and exhilarating”. But after getting married and having children, she decided to take a break from legal practice and chose to make her second foray into the legal world as an in-house counsel. “Being younger, I could handle a lot more of that stress. Private practice requires you to be absorbed in your work day and night, and I can’t afford that much time now,” she says. Meller said life in-house is much more interesting. “I like the commercial decision-making process. I also like the variety; at any time of the day, a client can call, and it could be something familiar, or something totally out of the blue.” ALB
Most in-house lawyers say they wouldn’t consider moving into private practice. Being closer to the heart of a business and giving commercial legal advice is proving satisfying
Choosing a law firm: The key criteria Essential criteria for choosing a law firm
Irrelevant criteria for choosing a law firm
98% 94% 88%
Specific legal expertise Turnaround time
30% 88%
87%
31%
36%
42%
Newsletters and seminars International office networks/connections
General expertise and ability Commerciality Understanding of your business
Lawyers were asked to rate the importance of the criteria on a scale of 1 to 5 (‘essential’ – ‘totally irrelevant’). The above percentages are the combined portion of respondents that ranked these criteria as either 1 or 2.
Size of firm/department Regional office networks and connections
The above percentages are the combined portion of respondents that ranked these as criteria 1 or 2 on a scale of 1 to 5 (‘essential’ – ‘totally irrelevant’), and are the least sought after criteria.
43
IN-HOUSE SURVEY
asian legal business ISSUE 8.4 5.4
In-house counsel mind their own business
38
ALB In-House
IN-HOUSE SURVEY
www.asianlegalonline.com
Gone are the days when in-house counsel played second fiddle to management or relied on external counsel for the bulk of their legal advice. Today’s in-house teams are taking firm control of their legal risk, and are increasingly discerning in their choice of law firms
G
illian Meller is experiencing an in-house evolution. As general manager of legal at Hong Kong’s mass transit railway operator MTR Corporation, Meller presided over the group’s merger with fellow state-owned railway company KCRC last year. The melding of two legal teams has forced her to take a fresh look at what it means to be in-house. “It’s a bit like the story of the blind men and the elephant,” Meller says. “Everyone can describe a little bit of the role, but it’s hard to see the whole picture properly.” But that is changing. Meller says the in-house function at MTR Corporation is fast becoming more holistic and strategic. “We aren’t just dealing with contractual issues as they arise, but trying to take a proactive role and adding value to the business as legal risk managers.” In fact, Meller says this evolution of the department is now her key management brief. “The first thing is really defining what the role of the in-house team is, and the second is delivering on that,” Meller explains. “I have to prove we can add more value by knowing the business and providing sound commercial advice – not just legal solutions.” Samantha Chia, Singapore-based head of legal and compliance for Nokia Siemens Networks, has also seen her in-house role shapeshift as a result of a merger. When Nokia and Siemens announced they would combine their mobile and fixed line phone network equipment businesses in 2006, little did either group know that a very public corruption and bribery scandal was about to engulf Siemens in Germany, forcing management to place renewed attention on a fast-growing area for in-house counsel – compliance.
Issues Survey
39
IN-HOUSE SURVEY
ISSUE 5.4
In-house teams in Asia How many in your in-house team? 50+ 4% 26–50
5.7%
63.6%
21–25 3.4% 16–20
1–5
1.7%
17.6%
11–15 4%
6–10
Your in-house team is:
40% Growing 11%
Contracting
49%
Stable
Your legal work is increasingly:
28%
No change
14%
58%
Done in-house
Proving the value of in-house counsel
Outsourced
Your legal team sits:
67%
As a central team
40
“I didn’t know how widespread these issues were, as it’s something quite new for us,” Chia says. However, discussions with in-house and compliance counsel at an anti-corruption summit in Hong Kong this year revealed otherwise. “Anti-corruption and compliance are a huge concern for many companies, and particularly those who do business in the US or have US parents, as they’re subject to the Foreign Corrupt Practices Act and Securities Paramjit Dhillon, Total Sports Asia and /or the Exchange Commission (SEC) rules,” she says. Chia reveals that now her most pressing task is to appoint a compliance counsel. The stories of these two leading in-house lawyers are revealing, and are echoed by their peers. The in-house function in Asia is fast becoming a more strategic, forward-thinking proposition, demanding that in-house general counsel become proactive managers of legal risk. Compliance issues is also a rapidly growing area of the mix. However, rather than shying away from the change, lawyers are stepping up to the plate. “As a result of the merger [MTR/KCRC] process, you realise you have a broader role – that of a trusted advisor,” Meller explains. “The thing that appeals to me about being in-house is being asked to produce legal judgments in this commercial context.”
33%
Within relevant business units
The majority of in-house legal teams in the Asia-Pacific region are either stable (49%), or growing in numbers (40%), according to the results of the ALB In-House Issues Survey. Only a precious few (11%) are actually contracting in the current business environment. Likewise, 58% of respondents say the proportion of legal work being done in-house is increasing, with only 14% saying they are increasingly outsourcing work. Team growth can be attributed to the booming economies and growing amount of legal work that is taking place in the region. However, there is another reason, say lawyers – companies are starting to see the value of in-house advice, which is the reason they are choosing to keep an increasing amount of legal work under their own roof. “Having a department in-house, as opposed to farming work out to law firms, is more cost-effective,” Chia argues. “Having a department right there also means they can easily handle the whole gamut of company legal issues.”
IN-HOUSE SURVEY
www.asianlegalonline.com
Counting the cost
Your annual legal spend is:
33%
No change
Your annual legal spend is:
Decreasing
7%
60%
Increasing
41% 17%
ALB IN-HOUSE SURVEY
6%
17% 7%
7%
5%
US$10m + US$5m–10m US$1m–5m US$500,000–1m US$250,000–499,999 US$100,000–249,999
US$10,000–99,999
Meller agrees, saying that companies are seeing the value lawyers can add to situations, and that legal spend targets define what can be outsourced. Paramjit Dhillon, vice president of legal and HR at sports marketing group Total Sports Asia in Malaysia, argues convenience is also a key factor. “They’re relying less and less on external lawyers because when they need you, you’re there,” she says. “We try and turn around documents in 24 hours, which is something you can’t get from external firms.” The survey also found that, alongside the growth of in-house legal departments, the majority of in-house teams have increased legal budgets to play with, as their total legal spend increases. Though in-house counsel do not appear to be looking to law firms for advice quite as much, legal spend figures show the size of the pie is growing in Asia, and there is no doubt that law firms are benefiting from this increased workflow.
What in-house lawyers want
“The first thing is really defining what the role of the in-house team is, and the second is delivering on that” GILLIAN MELLER, MTR CORPORATION
How could law firms best improve their service?
External counsel can no longer feel safe in simply providing clients recitations of existing law with no commercial overlay. In-house lawyers are increasingly demanding, and commerciality is their greatest concern. “While putting the commercial spin on things is our job, we don’t want external legal advice produced in a vacuum,” Meller says.
The ALB In-House Survey 2008 is a poll of the top general counsel and their legal teams across the Asia-Pacific region. Covering a variety of hot topics from external legal panels and legal spend to what in-house counsel are really demanding from their external legal providers, the survey presents a detailed and accurate picture of the in-house legal landscape in 2008. The results, tabulated and graphed on the following pages, is the region’s most up-to-date guide to the in-house lawyer’s mindset.
28%
31% 22%
Accessibility
19%
Commerciality Faster turnaround Gillian Meller, MTR Corporation
Accurate fee estimates
41
IN-HOUSE SURVEY
ISSUE 5.4
Panel views Do you have a specific external legal panel?
Yes 61%
No 39% However, when asked how their external counsel could most improve their level of service, significant portions of respondents also fell into each of the categories calling for increased accessibility, faster turnaround times and accurate fee estimates, showing in-house lawyers expect improvement across the board. “We look for good practical business-oriented advice – nothing too legalistic,” Chia from Nokia Siemens Networks says. “We’re also looking for fast turnaround times and value for money.” Providing a warning – or perhaps a glimmer of hope – for law firms in Asia, Meller says in-house lawyers “are less loyal to firms as a whole than they used to be”. While she has inherited existing relationships with Deacons, Slaughter and May, Lovells and Simmons & Simmons, as well as Mayer Brown JSM from the KCRC business, she argues the case that “individuals are more important” than the firm as a whole. Chia agrees: “We have some established relationships with firms from our time as Nokia, but we’re always on the lookout for good law firms and lawyers – we believe in healthy competition.” The ALB China survey results cement this idea. The majority of companies have a formal panel of external providers, with many in the 1–5 firm range. However, more and more are relying on a much broader talent pool of over 10 law firms. Most in-house counsel also review their panels regularly, giving newer players the opportunity to source work. Reflecting the point that it is the individual lawyer that counts, by far the most important criteria firms demand from their external counsel is specific legal expertise. A whopping 98% of in-house respondents to ALB China’s survey nominated specific legal expertise as essential when outsourcing their work. Dhillon from Total Sports Asia says the sports marketing group looks for specific expertise. “If we needed a sports lawyer, we would go to
Companies are starting to see the value of in-house advice, which is the reason they are choosing to keep an increasing amount of legal work under their own roof 42
How many firms are on your legal panel?
11% 1%
14%
11%
15% 25%
6% 2%
6% 1%
How often do you review your panel?
61% 30 %
No regular review
7%
Every year Every two years
1%
Every three years Every four or more years
1%
%
IN-HOUSE SURVEY
www.asianlegalonline.com
someone strong in their knowledge of sports law; if it was a labour dispute, we would go to a labour lawyer,” she says.
Private practice? Never again Most in-house lawyers say they would not consider moving into private practice. Though many have cut their teeth as associates, senior associates and even partners at private practice law firms, being closer to the heart of a business and giving commercial legal advice – with the added lifestyle advantages – is proving satisfying for most. “I didn’t really enjoy private practice,” Chia admits. “I wanted to be close to the business, and to contribute to those internal business decisions as a legal practitioner. You don’t see that very much in private practice – you may have a client come to you with a problem or issue, and you send off an opinion, but you would have to be lucky to be intimately involved in a project from start to finish,” Chia says. Dhillon says her eight years in private practice litigation were both “challenging and exhilarating”. But after getting married and having children, she decided to take a break from legal practice and chose to make her second foray into the legal world as an in-house counsel. “Being younger, I could handle a lot more of that stress. Private practice requires you to be absorbed in your work day and night, and I can’t afford that much time now,” she says. Meller said life in-house is much more interesting. “I like the commercial decision-making process. I also like the variety; at any time of the day, a client can call, and it could be something familiar, or something totally out of the blue.” ALB
Most in-house lawyers say they wouldn’t consider moving into private practice. Being closer to the heart of a business and giving commercial legal advice is proving satisfying
Choosing a law firm: The key criteria Essential criteria for choosing a law firm
Irrelevant criteria for choosing a law firm
98% 94% 88%
Specific legal expertise Turnaround time
30% 88%
87%
31%
36%
42%
Newsletters and seminars International office networks/connections
General expertise and ability Commerciality Understanding of your business
Lawyers were asked to rate the importance of the criteria on a scale of 1 to 5 (‘essential’ – ‘totally irrelevant’). The above percentages are the combined portion of respondents that ranked these criteria as either 1 or 2.
Size of firm/department Regional office networks and connections
The above percentages are the combined portion of respondents that ranked these as criteria 1 or 2 on a scale of 1 to 5 (‘essential’ – ‘totally irrelevant’), and are the least sought after criteria.
43
OFFSHORE FIRMS
ISSUE 5.4
Offshore
The China angle Following a bullish 2007, offshore law firms are keeping a close eye on China, with Hong Kong as ‘the gateway to China’ also set to profit from the attention
L
ast year an ALB China report investigated how the explosion of growth in Asia was changing the world order of offshore legal practice. Approximately half of the companies incorporated in the BVI – by far the largest host of offshore companies – are Asian-owned. China, of course, is leading the way and offshore law firms are jostling to make sure they get their piece of the action. Christopher Bickley, a partner based in the Hong Kong office of Conyers Dill & Pearman, says that while his firm caters to any PRC client looking to use an off-
MARCH 2008 IPOs INVOLVING CHINESE COMPANIES INCORPORATED IN CAYMAN ISLANDS Transaction Evergrande IPO
Firms involved Commerce & Finance, Freshfields, King & Wood, Maples and Calder, Sidley Austin
Honghua Group IPO
Arculli, Fong & Ng, Latham & Watkins, King & Wood, Appleby, Herbert Smith, Commerce & Finance Freshfields, Jingtian & Gongcheng, Jun He, Lee & Li, Maples and Calder, O’Melveny & Myers Conyers Dill & Pearman, Guangdong Guangda, Jingtian & Gongcheng, Kirkpatrick & Lockhart Preston Gates Ellis
Want Want IPO
Xingfa IPO
Source: ALB deals databases
Jurisdiction BVI, Cayman Islands, China, Hong Kong SAR, US Cayman Islands, China, Hong Kong SAR, US Cayman Islands, Hong Kong SAR, US Cayman Islands, China, Hong Kong SAR, Singapore
Amount (US$m) 5,000
409
1,048
58
shore vehicle, the bulk of the firm’s PRC work comes from clients looking to establish an investment holding company. “Such a company would be owned by the founders of a PRC operating group and private equity investors can make their investments with a view to the holding company eventually being listed,” he says. “One of the significant opportunities [for offshore firms] is providing Cayman and BVI advice to PRC companies raising capital to grow their businesses with a view to listing overseas,” says Christine Chang of Maples and Calder. “So over the past year,
“There are a number of groups which switched offshore prior to the new regulations who are continuing to seek new investors” CHRISTOPHER BICKLEY, CONYERS
44
OFFSHORE FIRMS
ISSUE 5.4
Offshore
The China angle Following a bullish 2007, offshore law firms are keeping a close eye on China, with Hong Kong as ‘the gateway to China’ also set to profit from the attention
L
ast year an ALB China report investigated how the explosion of growth in Asia was changing the world order of offshore legal practice. Approximately half of the companies incorporated in the BVI – by far the largest host of offshore companies – are Asian-owned. China, of course, is leading the way and offshore law firms are jostling to make sure they get their piece of the action. Christopher Bickley, a partner based in the Hong Kong office of Conyers Dill & Pearman, says that while his firm caters to any PRC client looking to use an off-
MARCH 2008 IPOs INVOLVING CHINESE COMPANIES INCORPORATED IN CAYMAN ISLANDS Transaction Evergrande IPO
Firms involved Commerce & Finance, Freshfields, King & Wood, Maples and Calder, Sidley Austin
Honghua Group IPO
Arculli, Fong & Ng, Latham & Watkins, King & Wood, Appleby, Herbert Smith, Commerce & Finance Freshfields, Jingtian & Gongcheng, Jun He, Lee & Li, Maples and Calder, O’Melveny & Myers Conyers Dill & Pearman, Guangdong Guangda, Jingtian & Gongcheng, Kirkpatrick & Lockhart Preston Gates Ellis
Want Want IPO
Xingfa IPO
Source: ALB deals databases
Jurisdiction BVI, Cayman Islands, China, Hong Kong SAR, US Cayman Islands, China, Hong Kong SAR, US Cayman Islands, Hong Kong SAR, US Cayman Islands, China, Hong Kong SAR, Singapore
Amount (US$m) 5,000
409
1,048
58
shore vehicle, the bulk of the firm’s PRC work comes from clients looking to establish an investment holding company. “Such a company would be owned by the founders of a PRC operating group and private equity investors can make their investments with a view to the holding company eventually being listed,” he says. “One of the significant opportunities [for offshore firms] is providing Cayman and BVI advice to PRC companies raising capital to grow their businesses with a view to listing overseas,” says Christine Chang of Maples and Calder. “So over the past year,
“There are a number of groups which switched offshore prior to the new regulations who are continuing to seek new investors” CHRISTOPHER BICKLEY, CONYERS
44
OFFSHORE LAW FIRMS we’ve provided advice to a number of companies on their IPOs.” Bickley says that there has been strong interest among Chinese groups in listing in Hong Kong and the US, using an offshore company. “We have, however, recently seen more interest in other stock markets, particularly London’s AIM, the Tokyo Stock Exchange, the Korean Stock Exchange and KOSDAQ.”
2008 outlook 2007 was a strong year for offshore law firms. “A lot of firms have had their best year ever,” says Michael Gagie of Harney Westwood & Riegels. Gagie nominates banking, structured finance, private equity and joint venture work as the areas that have kept his firm particularly busy. The picture so far for 2008 is less clear because of the credit crunch, the continuing impact of China imposing restrictions on inbound investment and the capacity for PRC companies to adopt offshore structures. “This year has seen a bit of a slowdown as a result of the new regulations,” says Bickley. “However, there are a number of groups which switched offshore prior to the new regulations being put in place who are continuing to seek new investors.” Christine Chang says that her firm is still busy: “We’re still experiencing numerous deals in various stages of the pipeline. As demand for our services from clients looking to invest into the PRC continues, we have been building up our legal teams to handle the flow of instructions.” Michael Gagie says it is a little early to make a call: “We had a relative ly quiet February, but that was probably due to the traditionally slower weeks before and after Ch i nese New
ISSUE 5.4
Year. But business has picked up again over recent weeks.” Gagie says that there is a sense of apprehension in the market about the rest of the year. “Transactions are still proceeding, but the pace of some of those transactions has slowed.” However, he is not expecting any immediate downturn in foreign investment into China. “On the private equity side, you have a number of funds that have already raised money and now need to invest it, so I think we’ll continue to see plenty of investment and M&A activity in China.” He also notes that in a worsening economy a decline in new investment might be partly compensated by an increase in restructuring existing investments and insolvency work.
Popular offshore jurisdictions Cayman Islands and BVI companies have been popular with foreign investors investing into the PRC and into Chinese entities listed overseas, says Chang. “The attractions of Cayman and BVI as jurisdictions include a well-developed legal system based on English common law, tax neutrality, no exchange controls, a nonintrusive regulatory system and experienced professionals with in-depth knowledge of the international capital markets,” she says. These professionals are often based in Hong Kong, a more convenient time zone. And Hong Kong, the largest source of foreign investment into China, may well give the likes of Cayman and BVI a run for their money. “Hong Kong is still very much the gateway to China,” says Michael Gagie. Gagie says that a factor contributing to Hong Kong’s attractiveness is the recent reform to PRC tax laws. “Hong Kong has a double taxation treaty with China and, as of January this year, a Hong Kong company receiving income from a Chinabased business will now pay a lower rate of withholding tax on that income than if the company was based in a country without a double taxation treaty with China.”
“Hong Kong has a double taxation treaty with China and, as of January, a Hong Kong company receiving income from a China-based business will pay a lower rate of withholding tax” MICHAEL GAGIE, HARNEYS Gagie says that this recent change has had, and is likely to continue to have, an impact on the use of offshore vehicles in some investment structures as none of the larger offshore jurisdictions have a double taxation treaty with China. ALB
“One of the significant opportunities [for offshore firms] is providing Cayman and BVI advice to PRC companies raising capital to grow their businesses with a view to listing overseas” CHRISTINE CHANG, MAPLES 46
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ISSUE 5.4
Freshfields lawyer bitten by the boxing bug
M&A financing leaderboard LEAGUE TABLE OF FINANCIAL ADVISORS TO ASIA-PACIFIC (EX JAPAN) M&A: VALUE Y/E 2007
Q1 2008
Company name
Value (US$m)
No. of deals
1 4
1
UBS
222,658
14
2
Citigroup
221,382
13
3
3
Morgan Stanley
218,883
7
9
4
Credit Suisse
218,185
6
10
5
Merrill Lynch
216,681
7
8
6
Lazard
215,815
4
2
7
Macquarie Group
214,688
9
7
8
JPMorgan
214,361
7
6
9
Goldman Sachs
213,998
7
5
10
Deutsche Bank
212,134
8
22
11
BNP Paribas
211,871
4
21
12
Rothschild
211,273
7
12
13
HSBC Bank
210,938
2
14
14
Gresham Advisory Partners
210,932
2
201
15
SG
210,868
1
16
16
Lehman Brothers
18,658
6
35
17
China International Capital
12,740
1
19
18
PricewaterhouseCoopers Corp Fin
6,486
6
24
19
Ernst & Young
5,054
8
–
20
Dalal and Shah
4,756
1
Source: Mergermarket
Garrigues firm figures lead the way S
panish firm Garrigues has become the first national firm to break through the quarter billion euro mark, ending this financial year 16% up on last year with revenues of €259m. The firm also recently added 24 associates to its partnership, with its Madrid office also receiving nine new partners. ALB
Diana inquest to bring barristers rich rewards
B
arristers fortunate enough to be involved in the infamous ‘Diana inquest’ will not only score themselves some free press, but are also expected to end up with a cool £5m by the end of the trial, according to recent reports. The total cost of the case is reportedly set to top £10m, with Harrods owner Mohamed Al Fayed allegedly spending more than £3m on barrister fees for the inquest alone and then some, on barristers representing his Paris hotel The Ritz. Both teams are said to command a hefty hourly rate of £575 for their work, and as such will be entitled to a sum of more than £675,000 for the duration. On the government end, lead counsel to the coroner Ian Burnett QC of 1 Temple Gardens, charges an hourly rate of £285, so will finish the trial £335,000 richer. Richard Horwell QC of Cloth Fair Chambers, representing the Metropolitan Police, and Robin Tam QC of 1 Temple Gardens, for MI6 and the Foreign Office, each command £250 an hour and can expect to earn £294,000 for the job. ALB
48
A
former London lawyer swapped word wars in the courtroom for actual fist fights, after her boyfriend introduced her to boxing as a sport. Laura Saperstein, of Morrison Avenue, Tottenham, was a M&A lawyer with Magic Circle law firm Freshfields, earning £75,000 a year, before she left law to train full-time at the London Boxing Academy in Tottenham. That was three years ago – and since then, she has won all 10 of her amateur fights along with the British lightweight amateur championship two years ago. Surprisingly, the 36-year-old says that she does not miss the law, but admits that there are probably a few female lawyers that would consider her career move a crazy one. ALB
Hurtful handshake lands lawyer in jail
A
Hollywood lawyer recently discovered that having a firm handshake is not all it’s cracked up to be. After attending a court hearing for her husband, Kathy Brewer Rentas, a commercial litigation attorney for a law firm in Hollywood, simply asked to shake hands with Assistant US Attorney Jennifer Keene – a move she probably would not have made had she known her own strength. According to reports, a court security officer present at the time said Brewer Rentas shook Keene’s hand so forcefully that the prosecutor’s arm was nearly ripped out of its socket. The unfortunate lawyer spent a night in jail and then released on $100,000 bail. She was ordered to stay away from Keene and undergo a psychological evaluation to determine if counselling was necessary. If convicted, Brewer Rentas faces up to a year in prison and could be penalised by the Florida Bar. ALB
Hey big spender
I
t seems the chief at Clifford Chance has recently adopted a fairly frugal state of mind. According to reports, Jeremy Sandelson, managing partner of the fi rm’s London base, recently sent a fi rm-wide e-mail around the office warning staff that taxi costs were spiralling out of control. The firm’s current taxi policy says that taxis can only be taken if working legitimately on firm business after 9pm in winter and 10pm in summer, and the costs should never exceed £60. Sandelson allegedly said that taxis are often kept waiting outside the office for long periods with the meters running. To try to combat the problem, the firm has decided to now monitor the use of taxis and re-examine its taxi expenses policy if costs do not decrease. ALB
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ISSUE 5.4
Freshfields lawyer bitten by the boxing bug
M&A financing leaderboard LEAGUE TABLE OF FINANCIAL ADVISORS TO ASIA-PACIFIC (EX JAPAN) M&A: VALUE Y/E 2007
Q1 2008
Company name
Value (US$m)
No. of deals
1 4
1
UBS
222,658
14
2
Citigroup
221,382
13
3
3
Morgan Stanley
218,883
7
9
4
Credit Suisse
218,185
6
10
5
Merrill Lynch
216,681
7
8
6
Lazard
215,815
4
2
7
Macquarie Group
214,688
9
7
8
JPMorgan
214,361
7
6
9
Goldman Sachs
213,998
7
5
10
Deutsche Bank
212,134
8
22
11
BNP Paribas
211,871
4
21
12
Rothschild
211,273
7
12
13
HSBC Bank
210,938
2
14
14
Gresham Advisory Partners
210,932
2
201
15
SG
210,868
1
16
16
Lehman Brothers
18,658
6
35
17
China International Capital
12,740
1
19
18
PricewaterhouseCoopers Corp Fin
6,486
6
24
19
Ernst & Young
5,054
8
–
20
Dalal and Shah
4,756
1
Source: Mergermarket
Garrigues firm figures lead the way S
panish firm Garrigues has become the first national firm to break through the quarter billion euro mark, ending this financial year 16% up on last year with revenues of €259m. The firm also recently added 24 associates to its partnership, with its Madrid office also receiving nine new partners. ALB
Diana inquest to bring barristers rich rewards
B
arristers fortunate enough to be involved in the infamous ‘Diana inquest’ will not only score themselves some free press, but are also expected to end up with a cool £5m by the end of the trial, according to recent reports. The total cost of the case is reportedly set to top £10m, with Harrods owner Mohamed Al Fayed allegedly spending more than £3m on barrister fees for the inquest alone and then some, on barristers representing his Paris hotel The Ritz. Both teams are said to command a hefty hourly rate of £575 for their work, and as such will be entitled to a sum of more than £675,000 for the duration. On the government end, lead counsel to the coroner Ian Burnett QC of 1 Temple Gardens, charges an hourly rate of £285, so will finish the trial £335,000 richer. Richard Horwell QC of Cloth Fair Chambers, representing the Metropolitan Police, and Robin Tam QC of 1 Temple Gardens, for MI6 and the Foreign Office, each command £250 an hour and can expect to earn £294,000 for the job. ALB
48
A
former London lawyer swapped word wars in the courtroom for actual fist fights, after her boyfriend introduced her to boxing as a sport. Laura Saperstein, of Morrison Avenue, Tottenham, was a M&A lawyer with Magic Circle law firm Freshfields, earning £75,000 a year, before she left law to train full-time at the London Boxing Academy in Tottenham. That was three years ago – and since then, she has won all 10 of her amateur fights along with the British lightweight amateur championship two years ago. Surprisingly, the 36-year-old says that she does not miss the law, but admits that there are probably a few female lawyers that would consider her career move a crazy one. ALB
Hurtful handshake lands lawyer in jail
A
Hollywood lawyer recently discovered that having a firm handshake is not all it’s cracked up to be. After attending a court hearing for her husband, Kathy Brewer Rentas, a commercial litigation attorney for a law firm in Hollywood, simply asked to shake hands with Assistant US Attorney Jennifer Keene – a move she probably would not have made had she known her own strength. According to reports, a court security officer present at the time said Brewer Rentas shook Keene’s hand so forcefully that the prosecutor’s arm was nearly ripped out of its socket. The unfortunate lawyer spent a night in jail and then released on $100,000 bail. She was ordered to stay away from Keene and undergo a psychological evaluation to determine if counselling was necessary. If convicted, Brewer Rentas faces up to a year in prison and could be penalised by the Florida Bar. ALB
Hey big spender
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t seems the chief at Clifford Chance has recently adopted a fairly frugal state of mind. According to reports, Jeremy Sandelson, managing partner of the fi rm’s London base, recently sent a fi rm-wide e-mail around the office warning staff that taxi costs were spiralling out of control. The firm’s current taxi policy says that taxis can only be taken if working legitimately on firm business after 9pm in winter and 10pm in summer, and the costs should never exceed £60. Sandelson allegedly said that taxis are often kept waiting outside the office for long periods with the meters running. To try to combat the problem, the firm has decided to now monitor the use of taxis and re-examine its taxi expenses policy if costs do not decrease. ALB
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australasian legal business ISSUE 5.10