China Legal Business 5.9

ISSUE 5.9

Environmental law Green development sparkes new opportunities 法律服务业面临绿色机遇

Capital markets A-share markets down, legal work continues 股市下滑对律所证券业务影响有限

Trademark Lawyers rise to the enforcement challenge 律师深度参与商标保护执法行动

CHINA

The hottest legal eagles of 2008

20 0 8 年度二十五位热门律师 DEALS ROUNDUP LATERAL MOVES IN-HOUSE VIEW REGULATORY UPDATES UK, US REPORTS

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CHINA

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EDITORIAL >>

The art of being versatile

I

n our culture, change has always been regarded as an intrinsic part of the flow of life. As much as change brings challenges, it also brings with it opportunities.

In today’s rapidly changing commercial environment, the ability to cope with change and adjust quickly to new situations is needed more than ever before.

As this issue of ALB China reports, the region’s stock markets have surely changed from a honey pot to wasp nest for many firms. IPO volumes are down significantly in the two economies that drive the entire region – China and Hong Kong (see analysis on p12) – and capital markets have been affected to various degrees.

Domestic firms can learn valuable lessons from their international counterparts who have weathered many market ups and downs. Only a versatile firm can survive in changing market conditions.

“All practice areas will have different roles to play in different market conditions,” said Elsa Chan, head of Baker & McKenzie’s securities group in Hong Kong. “Firms who have an extensive scope of services will be in a better position than those who don’t in a market downturn.”

Firms that want to stay ahead in the long term need to make use of the quieter times to improve themselves, consolidate their practices and fine-tune their offerings to cater for the upturn.

It is also wise for firms to invest in emerging areas when the time is right. For example, amid the rising awareness of environmental protection, some firms have pioneered environmental law practices (see p40) and are reaping rewards from the country’s ‘green’ development plan.

For while trials and tribulations may open doors hitherto closed, capitalising on them is not simply a matter of turning up – it is about differentiation in an environment of uniformity. It may not necessarily mean seeking out new or novel approaches, but instead, be as simple as deploying existing resources in different ways. Above all, it is about learning the art of being versatile.

Firms who have an extensive scope of services will be in a better position than those who do not in a market downturn

2

IN THE FIRST PERSON “The Olympics have raised environmental awareness across China and put environment protection at the heart of the country’s future development” Wang Jihong, partner at V & T, expects the need for environment-related legal services to surge (p40)

“I’ve witnessed protection of IP over the last 10 years and there has certainly been a shift from administrative enforcement to include criminal enforcement.

For a long time, multinationals have been lobbying hard to protect their IP by pressing for criminal liability on those who infringe their trademarks” James Luo, head of Bird & Bird’s Asian IP enforcement practice in Beijing, on the importance of effective enforcement on trademark protection in China (p36)

CHINA

ISSUE 5.9

CONTENTS >>

contents

ALB CHINA ISSUE 5.9 12

30 40

COVER STORY 30 ALB China Hot 25 As the year moves closer to its end, ALB China reviews the past 12 months. A report highlighting the best and brightest lawyers in their field and who’s been making headlines

ANALYSIS 6

12

14

Securities JV US and European investment banks are racing to ink coveted joint ventures with local securities houses in an attempt to access the boundless potential of China’s capital market Capital markets ALB China reports on how leading capital markets law firms are faring in the face of the plunging A-share and H-share markets Olympic legal work Morrison & Foerster and King & Wood give ALB China an insight into their gold standard legal work as counsel for the Beijing Organising Committee for the Olympic Games

FEATURES 36 Trademark As China’s economy continues to flourish, its legal infrastructure must keep pace and intellectual property rights lawyers have welcomed tougher enforcement of the trademark law sparked by the Beijing Olympics

4

40 Environmental law The period of clearer and cleaner skies in Beijing during the Olympics has heightened environmental awareness in China and a new legal framework for environment protection is producing more ‘green’ work for lawyers

36 19 UK report 25 US report 48 Sign off

COMMENTARY

44 Record management Off-site records management is steadily becoming a growing practice among law firms interested in risk management

20 Arbitration SIAC

REGULARS

22 Shanghai Llinks Law Offices

8

22 Regulatory Paul Weiss

NEWS • Jincheng & Tongda and Need International join forces • Jinmao partners split to form new firm • Boutique firm Jiayuan expands to Shanghai • TerraLex network adds new member • Microsoft fights back over monopoly accusations • Dechert welcomes US-trained managing partner to Beijing office • EDF signs joint venture agreement with CGNPC • Coca-Cola bids for China Huiyuan Juice • China Resources Logic acquires China Resources Gas

21 Regulatory Zhonglun W&D

23 Singapore Loo & Partners 23 Insurance Grandall Legal Group 26 International tax Azure Tax

PROFILES 7

Guantao

15 Lifang & Partners

ALB ISSUE 5.9

NEWS | analysis >>

ANALYSIS

Banking on the securities business US and European investment banks are racing to ink coveted joint ventures with local securities houses in an attempt to access the boundless potential of China’s capital markets. ALB China reports one-third joint venture ownership limit. In addition, the revised criteria allow only relatively large domestic securities houses to be eligible for the joint ventures – a move that was designed to ensure smaller players were not snapped up by predatory foreign investors.

The first firm to receive approval after the new rules became effective was Credit Suisse. Applications

by Citibank and Deutsche Bank soon followed.

Benefits abound The benefits to the foreign investment banks are obvious, but the benefits to ► SINO-FOREIGN JOINT VENTURES

I

n 2007, IPOs in the A-share market generated RMB447bn and brought in approximately RMB8.88bn in underwriting fees for securities companies. As the A-share market cap and trading volumes grew and the potential for further development was recognised globally, an onshore presence became a priority for foreign investment banks.

Following the country’s entry to the WTO in 2002, foreign investment banks have been allowed to partner with domestic securities houses. The rules enable foreign banks to form joint ventures or take a strategic stake, to help domestic firms develop products, services and operating systems that will allow them to compete globally.

Evolution of the reform The first partnerships were announced in 2003 and 2004 as the large US and European investment banks rushed to find partners. Among the first banks to settle an investment were Morgan Stanley, BNP Paribas, UBS and Goldman Sachs. Approval criteria 6

and limits on ownership were designed to slow the process. Jonathan Stone, a partner with Skadden Arps in Hong Kong, said that this approach was taken because the Jonathan Stone, Skadden Arps Chinese government wanted to ensure that its local securities houses were able to “compete and gain a real footing”.

After the initial flurry of agreements, the approval process was suspended in 2006 to allow the restructuring of domestic securities businesses and a revision of the rules. Last year, China reiterated its pledge to open the domestic securities industry to overseas fi rms to comply with WTO rules, and the new guidelines regulating foreign investment became effective as of January 2008.

The revised rules modestly expanded the business scope of foreign brokerage joint ventures, widened the scope of who could apply and offered more choice for organisational form of the joint venture, but did not revise the

• In 1995 CICC became the first ever investment banking joint venture in China between Morgan Stanley, China Construction Bank and several other partners, offering brokerage and underwriting services.

• After BNP Paribas set up its joint venture, Changjiang BNP Paribas Peregrine Securities became the first foreign bank to act as lead underwriter for Chinese equity and debt issues.

• At the end of 2004 Goldman Sachs received approval to establish its joint venture with Beijing Gao Hua Securities.

• In 2006 UBS secured a 20% stake in UBS Securities with Beijing Securities just prior to the one-year moratorium. The venture began business in May 2007, with UBS enjoying management control.

• After the approval process reopened, Credit Suisse was the first firm to obtain approval for its joint venture with Founder Securities in June this year.

• CESL, the investment banking joint venture between CLSA (whose largest shareholder is France’s Crédit Agricole) and Hunan-based Fortune Securities, received a brokerage licence in June this year to augment its existing underwriting business.

• This year Citibank signed a memorandum of understanding with Zhongyuan Securities and Deutsche Bank AG applied for an underwriting licence in June 2008 to partner with Shanxi Securities.

• HSBC has renewed its efforts to find a partner after two previous deals fell through.

• Merrill Lynch, JP Morgan and Lehman are yet to enter into joint ventures but are investigating potential partnerships.

ISSUE 5.9

NEWS | analysis >>

the domestic securities houses are also significant.

Stone points to the availability of “a huge amount of expertise and experience among global investment banks that can benefit the local players in an emerging market like China”. He cites the experience of the global banks’ entry into Russia as an example of how it raises the bar for all participants.

Now that the A-share markets have turned bearish, international expertise is even more important. “The Shanghai market has come down a tremendous amount this year,” said Stone. “It’s no longer so easy to make money. This means it becomes more necessary for Chinese houses to have expertise to handle customers, volatility and periods of lower volumes.”

Robert Chu, partner in charge of Sullivan & Cromwell’s Beijing office, agrees. “The macro benefit is significant, because the Chinese securities industry isn’t in great shape at the moment, and it’s certainly in the interest of the industry overall to have the expertise and managerial experience that

international investment banks can bring to the table.”

Demand for legal services Chu said that there are two stages of possible involvement by international law firms. “First there’s the initial structuring of the joint venture arrangements,” he said. “They can get very complex with different contributions at various levels. You need to make sure the structure works for both sides and it doesn’t run afoul of regulatory requirements on the PRC side as well as the US rules and the rules of any other jurisdiction involved.

Needless to say it’s a time-consuming process requiring a combination of global experience and local knowledge.”

The second stage, given that the joint ventures will mean further developments in the range of work the investment banks are doing onshore means more work for law firms. “An expansion of the mandate of the international investment banks in China means an expansion of our work. In this connection, we expect to

Ministry of Commerce Issued the Notice of Archiving Documents on Foreign Investment in the Real Estate Industry

T

he Ministry of Commerce issued the Notice of Archiving Documents on Foreign Investment in the Real Estate Industry (“Notice No. 23”) on June 18, 2008.

The Notice No. 23 (hereinafter referred to as the “Notice”) sets out that the Ministry of Commerce shall authorize competent provincial departments of commerce to examine the archival materials on foreign investment in the real estate industry and the Ministry of Commerce shall carry out selective examination on certain number of foreign invested real estate enterprises (“FIREE”) each quarter. In case a FIREE fails to conform to current provisions, its foreign exchange registration shall be cancelled.

Consistent with former Opinions, the Notice restates project company principle. Foreign investment (including capital increase) is only limited to an

www.legalbusinessonline.com www.asianlegalonline.com

approved single real estate project, which means, one FIREE is limited to operate one project and vice versa, one project can only be operated by establishing one FIREE. Additionally, the Notice lists types of materials that the competent provincial departments of commerce shall examine in accordance with Document No. 171 and Document No. 50. It is our experience that in practice, the Ministry of Commerce usually conducts selective examination on these issues: (1) whether the establishment of the FIREE (including capital increase) has been in compliance with project company principle and whether the FIREE is only limited to an approved real estate project; (2) whether the shareholders of the FIREE are not companies formed offshore by a domestic company/natural person, and whether all shareholders of the FIREE are

be working very closely with PRC law firms,” explained Chu. Going forward, the joint ventures will expand the work that the international banks can do in China, but, Chu said, we will have to wait and see precisely what this entails in individual cases.

Link-ups likely to continue Despite the climate of global instability and the weakened domestic capital markets, the appetite for underwriting and brokerage platforms here has not abated. “A lot of the banks are firefighting right now, dealing with sub-prime fallout and the downturn in deal flow. They all have more pressing short-term issues to deal with,” said Stone. “But from a long-term strategic perspective, I don’t think they have downgraded joint ventures as a priority.”

Chu agrees. “I would expect more news in the coming months and years for the banks that don’t have a joint venture in place announcing that they’re working on it. HSBC announced earlier this month and DB has put in an application.

It’s not at all surprising.” ALB

Firm Profile

Guantao Law Firm

not affiliated to each other, or are not subject to a same actual controller; (3) whether the balance of registered capital and total investments complies with relevant regulations.

The Notice, together with other formerly promulgated rules and regulations, have formed a series of principles governing foreign real estate investments during recent macroeconomic adjustment period, i.e. business existence principle, project company principle, limitation on offshore finance principle, limitation on return investment of domestic residents and project archiving requirements etc.

Written by: Qiu Guang Li, Attorney at Law, Partner, Director of Sichuan Office Beijing Guantao Law Firm, Sichuan Office Room 1919, 19/F, Western Tower, No.19, 4th Section, Renminan Avenue, Chengdu, China 610041 Tel: (8628) 6829 9886 Fax: (8628) 6829 9899

7

NEWS | deals >>

would no doubt pay attention to

deals in brief | CHINA | ► ELECTRICITE DE FRANCE – CHINA GUANGDONG NUCLEAR POWER COMPANY JV 中广核 与法国电力公司合资建台山 核电站 Firm: Clifford Chance 高伟绅 Client: Electricité de France 法国电 力集团 Lead lawyers: Peiji Gao, Bruce Schulberg, Geraint Hughes

Gao Peiji, Clifford Chance

Firm: Grandall Legal Group (Shenzhen) 国浩律师 集团（深圳） Client: China Guangdong Nuclear Power Company 中国广东核电集团 Lead lawyer: Eric Wu 吴爽

• French energy company Electricité de France (EDF) has signed a joint venture agreement with the China Guangdong Nuclear Power Co to construct, operate and maintain two third-generation reactors in Taishan city • About US$45bn in scientific and industrial contracts between the two countries were signed and EDF will control about 30% of the French-Chinese nuclear partnership for 50 years • The deal is highly significant on several levels in terms of the knowledge and technology transfer to China, where the development of nuclear power will help China manage its power shortages, as well as reduce pollution. The deal may set a precedent for future joint ventures, something other international firms

• This project is one of the largest JV investments in China to date and involves the very latest nuclear technology

• The transaction is subject to due diligence review and shareholders' approval

| CHINA | ► COCA-COLA – CHINA HUIYUAN JUICE BID 可口可乐收购汇源 果汁 Value: US$2.4bn

Firm: Skadden 世达 Client: Coca-Cola 可口可乐 Lead lawyers: Martha McGarry, Greg Miao, Nick Norris Firm: Freshfields Bruckhaus Deringer 富而德 Client: China Huiyuan Juice 汇源果汁 • The bid is the largest foreign acquisition of a Chinese company and is the most significant since the country's anti-monopoly law took effect in August 2008 • The deal is subject to regulatory approvals, but on successful completion the new entity will control 37% of the nation's juice market • It is expected that Chinese demand for concentrated juices will increase with income rises and better lifestyles, hence the move by Coke to move beyond carbonated drinks • The two firms re-instated their client relationships: Freshfields has previously advised China Huiyuan on its IPO in Feb 2007, while Coca-Cola has engaged Skadden on a variety of work, including its US$1.75bn sale of bonds and the acquisition of VitaminWater brand for US$4.1bn

| CHINA | ► CHINA RESOURCES LOGIC – CHINA RESOURCES GAS ACQUISITION 华润励致收购华 润燃气 Value: US$488m

Firm: Slaughter and May 司力达 Client: China Resources Logic 华 润励致 Lead lawyer: Benita Yu • China Resources

8

Logic Ltd is to acquire China Resources Gas Ltd from its parent, China Resources (Holdings) Co Ltd, gaining access to the booming natural gas industry in China

| CHINA | ► VANKE BOND ISSUE CORPORATE 万科发行公司 债券 Value: US$863m

Firm: Shu Jin 广东信达 Client: Vanke 万 科企业股份有限 公司 Yan Xueming,

Lead lawyers: Ma Vanke Group Yunyan and Wei Shaohui 麻云燕、韦少辉 Firm: Zhonglun 中伦 Client: Underwriters 承销团 Lead lawyer: Ye Beicheng 叶倍成

• Vanke, China's largest listed property developer, has successfully raised RMB5.9bn (US$863m) from issuance of corporate bonds • Part of the proceeds from the bond issuance will be invested to improve the company's debt structure and optimise its debt ratio, and the remainder will supplement its capital flow • CITIC Securities has been appointed by the issuer to be the lead underwriter for the issuance • According to Yan Xueming, Vanke Group’s head of legal and risk management, the group often works with Shenzhen-based Shujin law firm for securities and capital markets related matters

| CHINA | ► TPFTZ CORPORATE BOND ISSUE Value: US$410m

Benita Yu, Slaughter and May

Firm: AllBright 锦天城 Client: Tianjin Port Free Trade Zone Investment Co 天津保税区投资有 限公司 Lead lawyers: Zhang Lili and Ding Qiwei 张莉莉、丁启伟 ISSUE 5.9

NEWS | deals >>

• Tianjin Port Free Trade Zone Investment Co. has successfully issued US$410m worth of corporate bonds.

Zhang Lili, The seven-year AllBright bonds will bear nominal annual interest of 7% payable annually • The issuer is mainly engaged in development and construction of infrastructure in Tianjin Port Free Trade Zone and Tianjin Airport International Logistics Zone and equity investment in the financial and high-tech sectors • All proceeds will be used to develop and construct the infrastructure for Tianjin Airport International Logistics Zone and the Airbus A320 Final Assembly Line project

| CHINA |

► YOUR MONTH AT A GLANCE Firm

Jurisdiction

Deal name

AllBright

China

TPFTZ Investment Co bond issuance

410

Debt market

Baker & McKenzie

China

Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

245

Equity/M&A

Clifford Chance

Hong Kong

Star Cruises - Travellers International Hotel Group acquisition

335

Equity market, Finance

China, France

Electricité de France - China Guangdong Nuclear Power Company JV

China Commercial Law

China

Shandong Fin CNC Machine IPO

Chiu & Partners

China/Singapore

Conyers Dill & Pearman

Gary Lock, Herbert Smith

Firm: Herbert Smith 史密夫 Client: Old Mutual 耆卫集团 Lead lawyers: Gary Lock, Su Hao, Karen Ip Firm: Fangda Partners 方达 Client: Old Mutual 耆卫集团 • Old Mutual acquired a 49% interest in ABN AMRO TEDA Fund Management Co, a major Sino-foreign joint venture asset management company in China, from Fortis Bank/ABN AMRO • Recently acquired by Fortis, ABN AMRO Asset Management (Asia) Limited has held a 49% interest in AATEDA since 2003. The other 51% is owned by a Chinese company controlled by TEDA

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Energy & Resources Equity

Trump Dragon Distillers IPO

Undisc

Equity

China/Singapore

Trump Dragon Distillers IPO

Undisc

Equity

China/Singapore

Qian Feng Fabric Tech IPO

15

Equity

Fangda Partners

China

Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

245

M&A

Foo Kon Tan Grant Thornton

China/Singapore

FSYM Construction - Beijing Yongmao Holdings acquisition

Undisc

Equity/M&A

Freshfields

China

China Mengniu Diary share placement

Undisc

Equity

China

International Finance Corporation equity sale

135

Equity

China

China Communications Services - China International Telecommunications Construction acquisition

China

Coca-Cola - China Huiyuan Juice bid

China/France

Electricité de France - China Guangdong Nuclear Power Company JV

China/Singapore

Qian Feng Fabric Tech IPO

15

Equity

Guantao Law Firm

China

ARC - Shaanxi Education equity acquisition

71

Equity/M&A

Herbert Smith

China

Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

Huen Wong & Co. in ass Fried Frank

China

Beijing Capital International Airport acquisition of Terminal No. 3

JSM

Hong Kong

Dah Chong Hong Holdings - Silver Precious International acquisition

Jingtian & Gongcheng

China

Trump Dragon Distillers IPO

King & Wood

China

Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

245

Finance

Paul Weiss Rifkind Wharton & Garrison

China

Olympus Capital Investment in Zhongwang

100

Equity/M&A

Rajah & Tann

China/Singapore

FSYM Construction - Beijing Yongmao Holdings acquisition

Undisc

Equity/M&A

Richards Butler

China

Olympus Capital Investment in Zhongwang

100

Equity/M&A

Skadden

China

Coca Cola - China Huiyuan Juice bid

Slaughter and May

China/Hong Kong

Shujin

China

达荷银基金管理有限公司股权 Value: US$245m

Firm: King & Wood 金杜 Client: Fortis Bank S.A./N.V 富通银行

Undisc

Deal type

47

► OLD MUTUAL – ABN AMRO TEDA FUND MANAGEMENT ACQUISITION 耆卫集团收购泰

Firm: Baker & McKenzie 贝克•麦 坚时 Client: Fortis Bank S.A./N.V 富通 银行

Value

Grandall Legal Group

Undisc

M&A

2,400

M&A

Undisc

245

Energy & resources

Finance

3,450

M&A

18

M&A

Undisc

Equity

2,400

M&A

China Resources Logic acquisition of China Resources Gas

488

M&A

Vanke bond issuance

863

Debt market

9

NEWS | deals >>

corporate finance, private equity investment and M&A transactions

| CHINA | ► SHANDONG FIN CNC MACHINE A-SHARE IPO 法因数控A股IPO 并上市 Value: US$47m

| CHINA | ► BEIJING CAPITAL INTERNATIONAL AIRPORT COMPANY LIMITED – TERMINAL NO. 3 ACQUISITION 首都机场股份收购三号航站 楼资产 Value: US$3.45bn

Firm: Huen Wong & Co in association with Fried Frank 香港 王桂埙律师行联合法朗克律师行 Client: Beijing Capital International Airport Company 北京首都机场 股份 Lead lawyer: Stephen Mok Firm: Tian Yuan 天元 Client: Beijing Capital International Airport Company 北京首都机场 股份 Lead lawyers: Liu Yan and Kong Xiaoyan 刘艳 、孔晓燕 Firm: V & T Law firm 万商天勤 Client: Capital Airports Holding Company 首都机场集团公司 • Beijing Capital International Airport Company acquired the airport's Terminal No. 3, which includes airfield assets, from Capital Airports Holding Company • Opened six months before the start of the 2008 Olympic Games, Terminal 3 at Beijing Capital International Airport is the world’s largest building and most advanced airport

| CHINA | ► OLYMPUS CAPITAL INVESTMENT IN ZHONGWANG

泰山投资亚洲控股公司投资忠 旺国际集团 Value: US$100m

Firm: Paul Weiss Rifkind Wharton

10

& Garrison 宝 维斯 Client: Olympus Capital Holdings 泰 山投资亚洲控股 公司 Lead lawyers: John E Lange, Gloria Liu-Luster

John Lange, Paul Weiss

Firm: Richards Butler 齐伯礼 Client: Zhongwang Group Limited 忠 旺国际集团 • Private equity firm Olympus Capital Holdings Asia has invested US$100m in Zhongwang International Group Ltd, a Liaoningbased aluminium manufacturer • Olympus Capital will appoint one director to the board of China Zhongwang Holdings, the holding company of Zhongwang • This is the third investment in China by Olympus Capital; prior investments include the Sichuan Emeishan Special Cement Co, China Minzhong, and Tamarisk

| CHINA | ► ARC – SHAANXI EDUCATION EQUITY ACQUISITION 瑞寰基金 投资陕西教育机构 Value: US$71m

Firm: Tian Yuan 天元 Client: Arc Education 瑞寰基金 Firm: Guantao Law Firm 观韬 Client: Shaanxi Education Lead lawyer: Cui Liguo 崔利国

Cui Liguo, Guantao

• ARC Education Investment

Management acquired 45% equity interest in Shaanxi Da De Education Development, which holds direct interests in Xi’an International University and Xinhua Institute of Chang’an University, two private education institutions in China. Sixty per cent of the consideration has been paid at the first closing • Guantao Law Firm, as the legal counsel for Shaanxi Da De, was responsible for the legal due diligence and advice on the financing structure and documentation

| CHINA | ► CHINA NEW ENTERPRISE INVESTMENT CO JIANGSU FEIDA GROUP INVESTMENT 新 企创投投资江苏飞达集团 Value: US$50m

Firm: Zhonglun 中伦 Client: China New Enterprise Investment Co 新 企创业投资企业 Lead lawyer: Jeremy Dai 戴志文

Firm: Zhonglun 中伦 Client: Shandong Fin CNC Machine Co. 山东法因数控机械股份有限公司 Lead lawyers: Zhang Zhong and Hu Tingfeng 张忠、胡廷峰 Firm: China Commercial 广东华商 Client: Underwriters 承销商 • Shandong Fin CNC Machine Co. (Fin CNC Machine) debuted on Shenzhen Stock Exchange on 5 September, raising more than RMB300m through its IPO • China Commercial Law Firm advised the underwriters led by China Merchants Securities • The issuer is a Shandong-based high-tech enterprise, which exports products into Western Europe and commands 62.14% of domestic market share • Li Shengjun, president of Fin CNC Machine, said the IPO proceeds will be used to construct the production base of steel structure digital full-set device in Jinan

| CHINA | ► FSYM CONSTRUCTION – BEIJING YONGMAO JIANGONG ACQUISITION 抚顺永茂收购北 京永茂建工

Jeremy Dai, Zhonglun

Firm: Yuan Tai 源泰 Client: Yongmao Holdings Limited 永茂控股

• China New Enterprise Investment Co is a China incorporated closed-end private equity fund targeting opportunities in China

Firm: Rajah & Tann 新加坡立杰 Client: Yongmao Holdings Limited 永茂控股 Lead lawyer: Serene Yeo

• Feida Group is a well-known manufacturer of drill bits, taps, diamond blade and electric tools.

Its tool bits account for more than 40% of total export amount of country

• Fushun Yongmao Construction Machinery agreed to acquire a 66% interest in Beijing Yongmao Jiangong Machinery Manufacturing, a tower cranes manufacturer, from Fushun Yongmao Industry Group

• Jeremy Dai is a partner with Zhonglun based in Shanghai, who has extensive experience in

• FSYM construction is a whollyowned subsidiary of Yongmao Holdings, which is listed on the ISSUE 5.9

NEWS | deals >>

Singapore Exchange. Yuantai advised the IPO and listing of Yongmao Holdings on Singapore Exchange at the beginning of 2008

► YOUR MONTH AT A GLANCE (CONT) Firm

Jurisdiction

Deal name

Tian Yuan

China

ARC - Shaanxi Education equity acquisition

China

Beijing Capital International Airport acquisition of Terminal No. 3

3,450

M&A

V&T

China

Beijing Capital International Airport acquisition of Terminal No. 3

3,450

M&A

Yuan Tai

China/Singapore

FSYM Construction - Beijing Yongmao Holdings acquisition

Zhonglun

China

Jiangsu Feida Group PE investment

China

Vanke bond issuance

China

Shandong Fin CNC Machine IPO

| CHINA/SINGAPORE | ► TRUMP DRAGON DISTILLERS LAUNCHES SINGAPORE IPO 祥 龙控股新加坡IPO及上市 Value: US$50m

Firm: Jingtian & Gongcheng 竞天公诚 Client: Trump Dragon Distillers Holdings 祥龙控股 Lead lawyer: Zhang Xusheng 张绪生 Firm: Chiu & Partners 赵不渝马国强律师事务所 Client: Trump Dragon Distillers Holdings 祥龙控股 Firm: Conyers Dill & Pearman 康德明 Client: Trump Dragon Distillers Holdings 祥龙控股 Firm: Stamford Law Corporation 腾福 Client: UOB Kay Hian (underwriter) 新加坡大华继显证券公司 • Trump Dragon Distillers Holdings, incorporated in Bermuda earlier this year, is the first baijiu (白酒) maker to list in Singapore. The company and its subsidiaries, based in Henan province, produces 68 different types of baijiu, including its signature brand “四五 四五” (“Siwu”) • The issuer’s joint CEO Zhou Tao said that Singapore is the financial centre of Southeast Asia, which is very attractive to foreign investors, and it is a strategic place for mid-sized companies to be listed as it has flexible regulatory listing requirements and simple approval procedure • Currently, a number of Henanbased companies have been listed in Singapore, including Synear Food Holdings, China XLX Fertilizer and CentraLand

Value 71

Undisc

Deal type Equity/M&A

Equity/M&A

50

Private equity

863

Debt market

47

Equity

Does your firm’s deal information appear in this table?

Please contact

alb@keymedia.com.au

61 2 8437 4700

“Singapore is the financial centre of Southeast Asia, which is very attractive to foreign investors.

It’s also a strategic place for mid-sized companies to be listed, as it has flexible regulatory listing requirements and simple approval procedure” ZHOU TAO, TRUMP DRAGON DISTILLERS HOLDINGS Firm: Grandall Legal Group (Guangzhou) 国浩律师集团（广州） Client: Qian Feng Fabric Tech乾丰集团 乾丰集团 Firm: Conyers Dill & Pearman 康德明 Client: Qian Feng Fabric Tech 乾丰集团 • Qian Feng Fabric Tech, a Fujianbased maker of knitted synthetic fabrics incorporated in Bermuda, has raised US$15.3m through its IPO in Singapore to fund its expansion • Qian Feng provides its products to over 100 clients, including Adidas, Nike, Triumph and Li Ning

| CHINA/SINGAPORE | ► QIAN FENG FABRIC TECH SINGAPORE LISTING 乾丰集团 新加坡上市

Firm: KhattarWong 凯德 Client: Qian Feng Fabric Tech 乾丰集团 Lead lawyers: Ch’ng Li-Ling, Chen Mao www.legalbusinessonline.com

11

NEWS | analysis >>

ANALYSIS Subtle changes in work patterns

Equity: Opportunity in adversity

Baker & McKenzie and Jiayuan recently helped ensure the A-share and H-share IPOs of China South Locomotive & Rolling Stock Corp were successful. The issuer, China’s largest train maker, has raised US$1.5bn through its debut, and its H-share IPO is the third largest in Hong Kong so far this year.

A few large IPO projects have kept the capital markets teams at the two firms quite busy so far this year, but their partners have felt the pinch of the stock market downturn.

“If we say we aren’t affected, it would be far from the truth,” said CY Leung, senior partner of the securities group at Baker & McKenzie in Hong Kong.

“But we are probably less affected than many of our competitors, including some of the best capital markets firms from London and New York.”

Before the China South Locomotive listing, Baker & McKenzie had also advised on the H-share issuance of China Railway Construction Corporation – the largest listing in Hong Kong so far this year, and the global offering of SJM Holdings, Macau’s largest casino operator.

“We haven’t seen many securities

The impact on leading capital markets law firms of tumultuous A-share and H-share markets has thus far been remarkably light.

ALB China reports

F

rom the record high of 6,000 points last October to lows in the 2,000s, the Shanghai stock index is still continuing its downward trend.

In the first eight months of 2008, the number of IPOs in the Greater China region and the total funds raised in the A-share and H-share markets have nose-dived. Many companies have postponed their listing plans amid global economic uncertainty.

Law firms across the region, particularly those focusing on capital markets, have been affected to various degrees.

However, there is a philosophy in this dynamic legal services market that as much as adversity brings challenges, it also brings with it opportunities for profit. Leading capital lawyers say their billable hours have not been declining in line with the sagging stock index, and the prospects for prosperity remain plentiful.

12

► TOP A-SHARE IPOs SAME PERIOD (2007)

► TOP A-SHARE IPOs SO FAR (2008)

Issue date

Issuer

Proceeds (US$m)

Issue date

Issuer

13/02/2007

Ping An Ins (Grp) Co of China

5,018

28/01/2008

China Coal Energy

3,559

26/02/2008

3,113

BoCOMM

3,266

China Railway Constr Corp

26/04/2007

Proceeds (US$m)

15/01/2007

Industrial Bank

2,055

18/04/2008

Zijin Mining Group

1,429

20/06/2007

China COSCO Holdings

1,988

10/04/2008

Jinduicheng Molybdenum Group

1,277

20/04/2007

China CITIC Bank

1,732

6/08/2008

China South Locomotive

955

► IPOs BY NATION 1 Jan – 7 Aug 2008 Domicile nation

1 Jan – 7 Aug 2007

Proceeds raised (US$m)

Mkt. share (%)

US

26,026

27

26

26,395

13

124

China

21,151

22

97

36,982

18

119

-42.8

889

1

11

5,824

3

30

-84.7

Japan

813

0.9

28

2,040

1

86

-60.2

UK

808

0.9

18

10,967

5

69

-92.6

Hong Kong

Number of issues

Proceeds Mkt. raised share (US$m) (%)

Number of issues

YOY growth (%) -1.4

Source: Thomson Reuters ISSUE 5.9

NEWS | analysis >>

issues this year compared to last year, and although Chinese companies will continue to want to raise funds in Hong Kong, the number of deals in the pipeline is smaller than 18 months ago,” said Leung.

The firm’s securities group is working on some IPO projects, which are getting closer to completion. If the market conditions do not further deteriorate, partners expect to see one or two more IPO launches at the end of this year.

Similar to Baker & McKenzie, Jiayuan was involved in a number of large IPOs earlier this year, including the ‘first A then H’ share listing of China Railway Group and A-share issuance of Hong Kong-listed China Coal. The firm’s managing partner has reported that IPO activity is slower than the same period last year but lawyers are still busy with a range of capital markets-related projects.

“While there is a slow-down in the number of IPOs we’re advising, we are actively involved in other financing activity, including private placements, seasoned equity offerings and rights offerings,” said Yan Yu, managing partner of Jiayuan.

“Areas in which we have experienced ► A-SHARE IPO VOLUMES Issue date (totals)

Proceeds (US$m)

Number of Issues

1 Jan – 7 Aug 2008

13,989

66

1 Jan – 7 Aug 2007

20,639

67

YOY growth

-32%

► HONG KONG IPO VOLUMES Issue date (totals)

Proceeds raised (US$m)

Number of issues

1 Jan – 7 Aug 2008

7,818

23

1 Jan – 7 Aug 2007

18,420

46

YOY growth

-57%

significant growth this year are M&A and restructuring,” Yan added.

Her firm is currently advising on Panzhihua Steel’s plan to merge with four other companies through share swap, and an M&A deal between Shanghai Automotive Industry Group and Shanghai Bashi Industrial Group.

Staying versatile “The biggest difference between this year and last year is that there have been less IPOs launched this year, and to be fair we aren’t as busy as last year,” said Paul Chow, partner with Linklaters in Beijing. “The number of IPOs we’ve been involved in hasn’t changed much this year, but one or two IPOs have been delayed due to market conditions, and that has some impact on our practice.”

Usually legal fees will be paid in full once an IPO is actually launched.

If a deal is not going to market, the fees will still be paid but may be at a different rate.

In spite of a few deals being delayed, Chow is confident that revenue for 2008 will meet or exceed the firm’s expectations. “While some IPOs have been delayed, other areas remain busy such as ongoing M&A activity and private, illiquid fi nancings,” said Chow.

Any firm that wishes to stay in the market for the long term and survive market cycles will need to be versatile. This is a valuable lesson that domestic firms can learn from their international counterparts who have gone through several market ups and downs.

“All practice groups will have different roles to play in different market conditions,” said Elsa Chan, head of Baker & McKenzie’s securities group in Hong Kong.

“Firms who have an extensive range of services will be in a better position than those who don’t in a dire situation.”

A hopeful future At the downside of the economic cycle, the outlook for law firms remains positive.

Linklaters recently relocated William Liu, a partner specialising in advising on debt-and-equity-linked issues, www.legalbusinessonline.com

“The number of IPOs we’ve been involved in hasn’t changed much this year, but one or two IPOs have been delayed due to market conditions, and that has some impact on our practice” PAUL CHOW, LINKLATERS from Hong Kong to Shanghai. “We see potential in China’s capital markets, so we made an investment by relocating Liu,” said Chow. “We are very confident in the pipeline of deals – not only the quantity, but also the quality of the deals that the China market will produce. Going forward, deals will become increasingly complex with novel structures.”

As many of the large SOEs have already listed, international and domestic firms are now anticipating the IPOs of a large number of substantial private enterprises and companies in the natural resources and consumer sectors. However, it is also expected that IPOs ranging between US$500m and US$1bn will still be plentiful, they say, while mega-IPOs like ICBC will be rare.

“Many companies will still go for Hong Kong listings, because they want the international shareholder base, internationalstandard corporate governance and the cash,” said Chow.

Chow’s optimistic sentiment seems to be shared by the legal fraternity in the region. “The usual wisdom is that if the Shanghai index and Hong Kong index have hit a certain level in the past, then sooner or later they may be able to reclaim that territory.

Whether that will happen and how long it will take for them to get back to that level is a trillion-dollar question,” said Leung. ALB 13

NEWS | analysis >>

ANALYSIS

Olympic work: Rising to the challenge Morrison & Foerster and King & Wood set the gold standard in their roles as counsel for the Beijing Organizing Committee for the Olympic Games (BOCOG). Their marathon mantra? No pain, no gain

F

rom the fine print on each entry ticket to the tomes of contracts with the world’s broadcasting networks, Olympic lawyers at Morrison & Foerster and King & Wood have had a busy – but uplifting – time of late.

Morrison & Foerster, with its well-established office in Beijing, and prominent domestic firm King & Wood had a hectic six years since they were appointed as the sole Steve Toronto, international counsel and MoFo PRC counsel respectively for BOCOG. In an exclusive interview with ALB China, Steve Toronto, lead partner of the MoFo team, said the preparatory work was well worth it for the “relatively smooth” running of the Games during its two weeks.

“We drafted thousands and thousands of documents, forms and lease agreements and vetted them through to the final print. This was the most important part of our role as international counsel as it set the legal framework of what could be done and what couldn’t be done so that everyone acted accordingly,” said Toronto.

Seemingly minute details such as the formation and signature of indemnity forms from the parents of the children whose faces were used in advertisements were overseen by the firm. The firm played its most pivotal role in the joint venture formation of a broadcasting entity – The Beijing Olympic Broadcasting Corporation – between the BOCOG and International Olympic Committee (IOC). The JV had to be formed as the government did not permit foreign investment or ownership of broadcast media in the country, but it had to be done as the IOC required control over the television production of the Games. MoFo worked closely with their PRC counterparts King & Wood in this matter.

“This is the most significant part of our work, as the two principal sources of

14

revenue for the Games are the sales of broadcasting rights for the Games and the sports marketing programs via the licensing of the five Olympic rings to corporate sponsors and the production of Olympics merchandise. The entire event was financed by those who were willing to pay for proximity to the Games and its trademarks to sell advertisements,” said Toronto.

American broadcaster NBC, for example, paid well over US$1bn for the broadcasting rights to the Games.

MoFo’s experience as counsel for the Salt Lake City Olympic Winter Games in 2002 and the 2004 Olympic Games in Athens stood them in good stead. “We brought to the table a high degree of experience that understood the wide, complex and unique aspect of how the Olympics operate, such as how sports sponsorships work. Given the sophisticated nature of international legal negotiations and that an Olympic organising committee only goes through the process once, we had a lot to offer,” said Toronto.

For first-time Olympic advisor King & Wood, the experience of working with the IOC and BOCOG on the world’s most important sports event was eyeopening, stimulating and invaluable.

Lead partner of King & Wood’s legal team, Susan Ning, said the first year was the most difficult, because of the well-established and sophisticated regulations, rules and by-laws adopted by the IOC – new territory for both BOCOG and King & Wood. “We had to spend a significant amount of time studying and understanding IOC bylaws, and trying to implement them under Chinese legal framework,” said Ning. “It was a very challenging process, so the firm gave the Olympic legal team its full support and high priority.”

After the first year, the Olympics legal services had become a routine practice of the firm. Two partners were fully dedicated to working with BOCOG’s 40man legal affairs department headed by Liu Yan and Li Yanjun. Eight or more

partners were available to contribute their specialty services in different areas whenever it was required.

King & Wood’s outstanding performance in advising BOCOG has met with high praise from both BOCOG and the IOC. Moreover, said Ning, the invaluable experience of advising the world’s most important sports event will benefit the firm in the long run.

Since 2002, King & Wood has been working with BOCOG as the PRC counsel, advising on event planning and organisation, marketing activities, IP matters, broadcasting, cultural campaigning, venue construction and management as well as sports-related contracts and dispute settlement.

Although the Olympics have ended, there is still work to be done as BOCOG dissolves. The lawyers are very much involved in the process of transferring all the intellectual property generated by the event to the IOC, and ensuring the settlement of any outstanding claims and that the BOCOG’s contractual requirements have been fulfilled.

It has been a marathon indeed and one in which the gold standard has been set. ALB ISSUE 5.9

NEWS | analysis >>

迎接奥运挑战

无

论是奥运会比赛场馆入场券背后的印刷内 容，还是各国广播公司就奥运会转播权签 署的各种合同，都与美富和金杜在过去几年中的 的工作密不可分。 自从六年前，美富与金杜分别被北京奥组委任 命为北京奥组委国际法律顾问和中国法律顾问， 两间事务所便一直为奥运筹备忙碌不停。美富北 京代表处管理合伙人Steve Toronto在接受《亚洲 法律杂志》独家采访时表示，为期两周的奥运赛 事“进行地较为顺利”，筹备阶段付出的所有努力 都是值得的。 Toronto表示：“我们起草了成千上万份文件、 表格和租赁协议，提供全程审查，直至最后印刷 出版。作为国际法律顾问，我们工作最重要的组 成部分是帮助设定法律框架，明确哪些事情可以 做，哪些不能做，所有人都据此行事。” 即使是十分琐碎的事务，法律顾问也必须认真 监督，比如对于在广告中使用其肖像的孩子， 家长保证表格的形式和签名事宜。在北京奥组 委和国际奥委会（IOC）合资组建转播公司－北 京奥运会转播公司的过程中，美富也发挥了重 要作用。由于中国政府不允许境外机构投资或 持有中国的广播媒体股权，而国际奥委会要求对 奥运会电视转播拥有控制权，因此必须成立合资 公司。美富与金杜密切合作帮助北京奥组委解决 了相关问题。

Toronto 表示：“奥运会收入主 要有两大来源，其一是奥运会 转播权的出售，其二是通过吸 引奥运五环特许赞助商和生产 奥运商品进行体育市场营销。 希望为奥运会提供赞助资金和 借助奥运为品牌做广告的企 Susan Ning, 业是整个奥运会的重要资金来 King & Wood 源。因此，这也成为我们工作 中的一个重要部分。” 以美国广播公司NBC为例， 该公司出资10亿美元才获得奥运会转播权。 2002年盐湖城冬季奥运会和2004年奥运会期 间，美富亦曾担任组委会法律顾问，那些经验 使其能从容应对相关问题。Toronto表示：“我们 拥有丰富的经验，深入了解奥运会运作的广度、 复杂性和独特性。鉴于国际法律谈判的复杂性， 以及北京奥组委是一次性参与相关工作，我们的 深厚经验可令客户获益匪浅。” 对于金杜而言，这次是其首次为奥运会提供法 律服务，能有机会与国际奥委会和北京奥组委合 作，参与全球最重要体育赛事的筹备工作，可拓 宽律所视野、激发潜能、积累宝贵经验。 金杜奥运法律业务团队主管合伙人宁宣凤表 示，第一年的工作最为困难，原因在于国际奥 委会已形成十分完善且复杂的规定、规则和议 事程序－这对北京奥组委和金杜而言都是全新

领域。2007年奥运会最后一年倒计时开始时， 宁宣凤曾表示：“我们需要拿出大量时间研究并 了解国际奥委会的议事日程，努力在中国法律 框架内执行这些日程。这项工作具有非常大的 挑战，事务所为奥运会法律团队提供全力支持 和优先对待。” 第一年过后，奥运会法律服务步入正轨，成为 该所日常业务的一部分。金杜的两位合伙人全职 协助由刘岩和李雁军负责的北京奥组委40人的法 律事务部。在必要情况下，事务所有八位以上合 伙人可随时在各自的专长领域提供法律支持。金 杜在为北京奥组委提供顾问服务期间表现出色， 赢得北京奥组委和国际奥委会的一致好评。此 外，宁宣凤表示，为全球最重要体育赛事提供 顾问的经历将使事务所在长期发展过程中获益。 自2002年以来，金杜以中国法律顾问的身份 与北京奥组委共同工作，在赛事计划和组织、市 场营销活动、知识产权事务、广播、文化宣传计 划、场馆建设和管理以及与体育相关的合同和纠 纷解决方面提供顾问服务。 虽然奥运会已落下帷幕，但北京奥组委解散后 续工作尚待完成。律师们正忙于将奥运会产生的 所有知识产权转交给国际奥委会，确保未决主张 的清算，保证北京奥组委的合同要求充分履行。 这是一项漫长的工作，也是一个树立黄金服务标 准的过程。

Available approaches for evidence collection in patent infringement litigation concerning a pharmaceutical process patent

C

ollecting evidence for a patent infringement litigation concerning pharmaceutical process patents is an important issue but can often be a very complicated one in Mainland China.

In most cases, the following approaches are available to the plaintiff;

1. Apply to the court to obtain application documents from the Pharmaceutical Administrative Authority Pursuant to the relevant laws, pharmaceutical enterprises must provide application documents, such as those detailing the manufacturing process, to the Pharmaceutical Administrative Authority before being granted a licence to produce the pharmaceuticals. In order to identify the defendant’s process, the plaintiff may apply to the court to obtain the said application documents from the Administrative Authority.

It must be noted that the manufacturing process recorded in the application for registration is not necessarily the process actually www.legalbusinessonline.com

used. In other words, although according to the application documents, the defendant’s process does not infringe the plaintiff’s patent, the possibility remains that the manufacturing process actually used by the defendant does indeed constitute an infringement.

2. Apply to the court for evidence preservation The plaintiff may apply to the court for preservation of the following evidence on the defendant’s infringing behaviour: operational specifications, production records, test records, warehouse inventories and delivery records.

However, pharmaceutical manufacturers sometimes use their own codes for the materials used rather than their official names in the said documents. If the meaning of these codes cannot be confirmed, identifying the production process which is actually used will be difficult.

3. Apply to the court to entrust a testing agent to conduct tests The plaintiff may apply to the court to take

Firm Profile

Lifang & Partners

samples of the materials and products used, as well as samples of the various mixtures which are results of chemical reactions during the production process, and entrust a testing agent to test the said samples so as to identify the process actually being used by the defendant.

It is crucial to ensure that the defendant does not have the opportunity to prepare before the collection of samples, otherwise it can be very hard to obtain authentic evidence.

Written by: Liu Yongquan, partner, Lifang & Partners Tel: 8610-64096099-605 E-mail: yongquanliu@lifanglaw. com Address: A1105 Nan Xin Cang International Building, A22 Dong Si Shi Tiao, Dongcheng District, Beijing, China 100007 Website: www.lifanglaw.com

15

NEWS >>

BEIJING

SHANGHAI

Jincheng & Tongda announces merger with Need International

A new ‘Jinmao’ in town

T

he merger between Jincheng & Tongda and Need International has been finalised, creating a new firm – JT & N. This merger is the most recent step taken by both firms towards enhancing their ability to provide quality legal advice and services to their ever-expanding client base.

The addition of the Need International team, led by founding partner Lan Lan, will significantly strengthen Jincheng & Tongda’s international practice expertise and experience. Lan, who obtained a JD degree from Harvard Law School, is qualified in China and a member of the New York Bar. Prior to establishing Need International, she had served as the general manager of John Hancock Life Insurance Company in China, overseeing its Beijing, Tianjin and Guangzhou representative offices, and worked for Skadden Arps in China.

She has extensive experience in corporate and fi nance areas, with an emphasis on banking and insurance. She has successfully assisted many multinational fi nancial service groups in their entry into the Chinese market.

金诚同达与NEED International合并

金

16

诚同达与Need International的合并最终完 成，催生全新事务所JT&N。此次合并是双 方发展战略中的重要举措，旨在增强专业实力， 并继续拓展客户基础，同时努力为客户提供更高 品质的法律意见和服务。 在创始合伙人蓝岚的带领下，Need International团队并入金诚同达后，可显著提升 新所处理国际业务的实力和经验。蓝律师在哈佛 法学院获法学博士学位，并且在中国和纽约两地 拥有律师执业资格。在创办NEED International 之前，她曾在中国担任美国恒康人寿保险公司 的中国总经理，负责北京、天津和广州代表处 的业务运作，还曾在世达律师事务所中国办事 处任职。 蓝律师在代理公司事务和融资领域有丰富经 验，专长为银行和保险业务。她曾为诸多跨国 金融服务机构提供顾问服务，协助他们成功进 入中国市场。

I

n a shocking move, nine partners at Jinmao, including Mao Huigang and Li Zhiqiang, ended their partnership with the firm and splintered off to set up their own shop branded Jinmao-Kaide.

The split was not a smooth one and the two parties had to go through a court case and months of discussion to achieve an agreement on division terms. Yet, it remains unclear how they will divide their clients.

Jinmao used to have 32 partners and was one of the top three law firms in Shanghai before the nine partners left, but had struggled to develop its internal management to keep pace with its rapid growth in recent years.

Several lawyers in Shanghai familiar with the firm said key issues within the firm were diverging interests and internal disagreements on management philosophy and direction.

After the division, the two firms will develop their businesses in different practice areas. Jinmao-Kaide will focus on corporate finance, capital markets

and foreign investment. The remaining partners and 45 lawyers at Jinmao, headed by partner Wu Boqing, will continue to focus on corporate law, project finance, commercial property, IP, litigation and dispute resolution.

金茂凯德现身上海

包

括毛惠刚和李志强在内的九位前金茂律师 事务所合伙人已完成退伙手续并重新创立 金茂凯德律师事务所。 此次退伙过程并不顺利，双方经过数月的协商 甚至对簿公堂才就分离条款达成一致。但目前尚 不清楚双方将如何划分客户。 在九位合伙人离职前，金茂有32位合伙人，曾 是上海领先律师事务所之一。但是，金茂的内部 管理以及运营模式与近年来该所的快速发展难以 保持一致。数位熟悉金茂的上海律师指出，金茂 内部的关键问题在于合伙人在利益分配方式，管 理理念和发展方向上存在较大分歧。 两家律所将在不同的领域发展业务。金茂凯德 将更专注于公司融资、资本市场和外商投资。金 茂剩余的合伙人和45位律师将在管理合伙人吴伯 庆的带领下继续侧重于公司法律、项目融资、商 业物业、知识产权、诉讼和纠纷解决。 ISSUE 5.9

NEWS >>

www.legalbusinessonline.com

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NEWS >>

news in brief >> MICROSOFT SEEKS OUT HYLANDS TO REIN IN PIRACY The IP practice group of Hylands has been appointed by Microsoft to advise on its anti-piracy campaign in areas of north China, including Beijing, Tianjin and Hebei.

The Hylands team is co-headed by partners Ma Xiaogang, Yu Rong and Zhang Bin. Ma is one of the founding partners of the firm and had previously served for many years at National Copyright Administration and had participated in drafting the copyright law and other laws and regulations relating to IP. However, Microsoft’s piracy problems in China may well be the cure for its alleged violation of the new anti-monopoly law (see page 20).

微软携手浩天信和打击盗版

浩天信和的知识产权业务团队获微软委托，协助微软在 包括北京、天津、河北在内的中国北方五个地区打击盗 版活动并提供相关法律服务。 此次为微软服务的浩天信和团队由合伙人马晓刚、俞 蓉和张斌带领。马晓刚是事务所创始合伙人之一，曾在 国家版权局任职多年，曾参与版权法和其它与知识产权 相关的法律法规的起草工作。 而微软在中国面临的盗版困扰却可能是解决其新《反 垄断法》问题的良方（详见第20页）。

SHANGHAI

Jiayuan sets up shop in Shanghai

C

orporate finance and capital markets boutique firm Jiayuan has established a branch office in Shanghai to further capitalise on the potential growth of the A-share market.

Based in Beijing, Jiayuan has advised on a large number of highprofile IPOs and listings, including the ‘first A then H’ listing of China Railway Group, the A-share listing of China Coal and the most recent IPO of China Southern Locomotive.

As part of the firm’s growth strategy, the Shanghai office will be the firm’s base in the booming Yangtze River Delta region to better service existing regional clients and new clients who need to raise capital at home and abroad. The Shanghai office is also set

to provide support to clients in M&A transactions in the region.

“An increasing amount of work is coming from Shanghai and the Yangtze River Delta region. Client demand has driven the need to open an office there,” said Yan Yu, the managing Yan Yu, Jiayuan partner at Jiayuan in Beijing. “An office in Shanghai will provide cost-effective services to our clients in the region and increase the productivity of our lawyers.”

The Shanghai office is currently headed by partner Shi Benning, and supported by seven lawyers and staff.

GUANGZHOU

TerraLex expands membership in Guangzhou

M JONES DAY GEARS UP FOR SINGAPORE FOREIGN LAW PRACTICE LICENCE International firm Jones Day has been invited to apply for a Qualifying Foreign Law Practice (QFLP) licence in Singapore just a week after Singapore’s Ministry of Law announced that it will accept QFLP applications.

Only five licences will be granted initially. The QFLP is part of Singapore’s plan to liberalise its legal market to support its financial services sector in the city state. Currently, foreign law practices are permitted to practise Singapore law only within a joint law venture through a Singapore law practice. Under the new QFLP scheme, selected foreign law practices will be allowed to practise Singapore law in permitted areas and employ Singapore-qualified lawyers.

众达为申请新加坡外国律师事务所执照积 极筹备

新加坡司法部部长宣布将接受外国合格律师事务所从业 申请后仅一周，国际律师事务所众达便“获邀”申请新加 坡合格外国律师事务所（QFLP）执照。 首批仅颁发五张执照。QFLP是新加坡推行法律服务 市场开放计划的组成部分，旨在为新加坡的金融服务行 业提供支持。目前，仅允许外国律师事务所通过与新加 坡律师事务所合资的形式在新加坡开展法律服务业务。 依据全新的QFLP计划，政府将允许选定的外国律师事 务所在允许的领域内开展业务，且允许聘用符合资格的 新加坡律师。

18

uch like the legal environment in general, the competition among legal associations is intense. Each network seeks to differentiate itself from the pack and appeal to a particular demographic. Asia, particularly China, has become an increasingly strategic location, where associations need to have a strong presence.

Already having three member firms in China, US-based TerraLex has expanded its network in the region further by adding Guangzhou-headquartered firm Wang Jing & Co to its membership.

The newest member firm, with nearly 50 lawyers, is a leading law firm in

Guangzhou and has a strong reputation in shipping and insurance practice areas. The addition of the firm to TerraLex’s global network provides the legal network and its global members access to and service capacity in the economic centre of the Peal River Delta, one of China's leading commercial and manufacturing regions.

The membership in TerraLex will also serve to upgrade Wang Jing & Co’s competitive strengths and level of service in the Chinese legal services market.

► TERRALEX MEMBERS IN CHINA • • • •

Hylands Liu, Shen & Associates AllBright Wang Jing & Co

► OTHER INTERNATIONAL LEGAL ASSOCIATIONS WITH MEMBERS IN CHINA • • • • • •

Lex Mundi Meritas MSI Global Alliance Lawyers Associated Worldwide (LAW) LawExchange International (LEI) LAWorld ISSUE 5.9

NEWS >>

嘉源上海分所开业

嘉

源是专注于公司融资和资本市场的专业型 律师事务所，近期在上海成立分所，希望 更好把握A股市场发展潜力和机遇。 嘉源总部位于北京，曾为许多大规模IPO和上 市项目提供法律服务，包括中铁股份有限公司先 A股后H股上市项目，中煤能源股份有限公司A股 上市和近期中国南车股份有限公司的IPO。 作为事务所发展战略的组成部分，上海分所将 为事务所拓展长江三角洲地区业务提供新契机， 同时为现有客户和希望在境内外融资的新客户提 供更好的服务。上海分所亦将在并购交易领域为 该地区的客户提供法律支持。 嘉源北京总部管理合伙人颜羽表示：“上海和长 江三角洲地区的业务量正不断增加。我们在客户 需求的推动下成立上海分所。新分所不仅能为该 地区客户降低法律服务成本，还能增加事务所律 师的工作效率。” 嘉源上海办事处目前由合伙人施贲宁负责，有 7位律师和文员。

TerraLex欢迎广州 新会员

uk report Linklaters and Freshfields go head to head in ECM rankings Linklaters and Freshfields have topped the Thomson Reuters European equity capital markets rankings, with both firms coming out on top in relation to number of deals and value of deals respectively.

The figures revealed that while Linklaters had successfully advised managers on 20 deals over the first half of 2008 (nine more than Freshfields, which came in second), the firm’s deals totalled US$14.6bn over the six-month period, behind Freshfields which worked on deals worth a total of US$29.8bn.

CMS mulls over merger options CMS Cameron McKenna recently revealed it is considering a major UK merger as an option to boost the firm’s presence in London.

Although the firm has not decided on any specific targets, managing partner Duncan Weston said the firm is investigating various types of merger.

Eversheds expands in Europe Eversheds has signed an alliance agreement with 12-partner Dutch practice Faasen & Partners which will cement the firm’s presence in both Amsterdam and Rotterdam.

The alliance, expected to be made official on 1 October 2008, will introduce Faasen & Partners as a member of Eversheds International, an international network of law firms in 24 jurisdictions with more than 2,500 lawyers.

Bottom rung of the Linklaters equity ladder could be lowered – if plans by partners go ahead Linklaters’ lawyers generally enter the equity with eight years’ PQE but a proposal – part of the firm’s consultation on its partnership structure – would allow senior associates and salaried partners to do so on the same level of experience as their counterparts in more established sectors when they launch new practices. Profitability of the new practice would largely influence how much a rung is lowered.

与

法律服务市场的情况类似，法律联盟机构 之间的竞争也日趋激烈。各大律所联盟均 希望树立与众不同的形象，吸引更多会员加入。 在亚洲，中国尤其成为日益重要的战略目标， 国际联盟体均希望在中国拥有较强的会员基础 和影响力。 美国TerraLex在中国已经拥有3家会员事务所， 近期新增总部位于广州的敬海律师事务所成为会 员，进一步扩展在中国的会员网络。 新会员敬海律师事务所有近50位律师，是广州 的领先事务所之一，在航运和保险领域声誉卓 著。珠三角是中国领先的商业和制造业基地，敬 海加入TerraLex全球会员网络后，可为TerraLex 的法律服务网络及其全球会员提供进入珠三角经 济中心的机会。

¨ ROUNDUP • Linklaters’ Belgium partner Jean-Pierre Blumberg has replaced Jean-Marc Lefèv to take on the role of European managing partner, representing the firm’s mainland Western European offices • Clyde & Co partners have approved plans to set up an international board to drive the firm’s global strategy, which will be chaired by commercial partner Anthony Garrod • Norton Rose has re-elected chief executive Peter Martyr for another three-year term • Commercial partner Peter Valert has taken over as managing partner of DLA Piper’s Prague office • Keeping up with its reputation as one of the best-paying law firms outside of the Magic Circle, Macfarlanes has unveiled across-the-board salary raises for all of its associates, with some receiving up to a 6.5% hike • Recent figures reveal that Pinsent Masons now has the fastest growing AIM practice in the top 10, beating both DLA Piper and Norton Rose to become the top legal advisor on London’s junior market.

The firm has acquired three new AIM clients in the last three months, and has now represented 59 AIM companies in total • Linklaters, Weil Gotshal & Manges and DLA Piper will all take lead roles on the upcoming £1.1bn sale of Foodvest to private equity group Lion Capital • Chief executive David Gray has stepped down from the helm at Eversheds, sparking a leadership contest. UK managing partner Bryan Hughes is tipped to take his place • At Clifford Chance, Laurent Vallee, formerly a Conseil d’État judge, joins as head of CC’s Paris-based tax practice while Amy Mahon returns to the London office as a corporate partner from Macquarie Bank

www.legalbusinessonline.com

19

NEWS >>

UPDATE >>

BEIJING

Arbitration

Microsoft defends anti-trust allegations

新加坡高等法院最新裁定： 当事人可将争议提交新加坡国际仲裁中心 依据国际商会规则仲裁

Arbitration Clause Referring to SIAC and ICC Rules 1

[

2008] SGHC 134 Facts – the plaintiff had entered into a License Agreement with the defendant. A dispute arose under the Agreement. The Agreement provided an Article that “any and all such disputes shall be finally resolved by arbitration before the Singapore International Arbitration Centre (“SIAC”) in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) then in effect.” The Tribunal ruled that the arbitration could be administered by SIAC applying ICC Rules. Dissatisfied with the Tribunal’s decision, the plaintiff applied to set aside the Decision on Jurisdiction.

Held – Plaintiff’s application dismissed. [1] The parties did not bargain for an ICC administered arbitration but for an SIAC administered one applying the ICC Rules. [2] There is in principle no objection to an arbitration being administered

by SIAC in accordance with ICC Rules. Any uncertainty of the operability of the clause had been cured by the parties’ conduct and SIAC’s confirmation of its willingness and ability to administer.

008年8月14日，新加坡高等法院就一关于仲裁条款有效性的争 议作出裁定：当事人约定将争议提交新加坡国际仲裁中心（下 称“新仲”）并按照国际商会仲裁规则（下称“商会规则”）进行仲 裁的仲裁协议有效。 根据新加坡法院公布的判决书，该案当事人在一许可合同中订立了 仲裁条款：任何争议提交新仲并按照当时有效的商会规则通过仲裁最 终解决。争议发生后，应诉人先向国际商会提起仲裁，申诉人答称：国 际商会不是本案的仲裁机构，应该向新仲提交仲裁；应诉人随之撤回 在国际商会的仲裁，向新仲申请了仲裁。仲裁庭组成后，申诉人又反对 向新仲提交仲裁。仲裁庭就管辖权作出决定：仲裁协议有效，可以提交 新仲适用商会规则进行管理。申诉人遂向高等法院申请撤销仲裁庭的 管辖权决定。 高等法院朱迪法官裁定：驳回申诉人申请。法官认定，当事人的合 意是将仲裁提交新仲管理、适用商会规则进行仲裁程序，而不是提交国 际商会管理仲裁；当事人的行为以及新仲对管理该仲裁案的确认，补正 了条款的操作性瑕疵，新仲按照商会规则管理仲裁没有违反任何原则； 组庭程序符合当事人约定。 该案再次说明，完整、准确、明确地订立仲裁条款的重要性。该案也 从侧面反映了新加坡司法实践对当事人仲裁意思自治的高度尊重。

2

M

icrosoft may have a viable legal defence against its first ever anti-monopoly claim in China, given the prevalence of pirated Microsoft products in the country and how ‘market share’ is defined by the Chinese authorities.

When lawyer Dong Zhengwei, a partner with Beijing-based Zhongyin law firm, grabbed the headlines by alleging that Microsoft was using its dominant market share to manipulate software prices in China and calling for a US$1bn fine to be imposed on the global software giant, Microsoft global VP Zhang Yaqin was quick to reply with an interesting counter argument: “Microsoft did not even have the preconditions of conducting monopoly activities in China,” he said. “Genuine Microsoft products have a very low market share in China because its products are widely pirated.”

Pirated goods According to 2006 figures from the Business Software Alliance – an industry group that tracks the illegal software trade – an estimated 82% of software installed on computers in China were pirated. The BSA calculated that sales lost due to software piracy in China were about US$3.9bn in 2005 alone.

Lawyers ALB China spoke to said that in determining a “dominant market position”, the Anti-Monopoly Law will mainly focus on whether a company has the power to control the price, sales volume and other trading conditions of its products.

“Obviously, sales of fake goods are beyond the control of the genuine producers, and it is unreasonable to count fake goods into the determination of market share. Thus, as a victim of fake goods, I won’t be surprised if Microsoft’s market margin in China is much smaller than most people have expected,” said Michael Zhang, a senior legal consultant at Sheppard, Mullin, Richter & Hampton’s Shanghai office.

Relevant market Dominance of a company’s preponderant market share is also determined by its ‘relevant market’. “There is a presumption of single firm dominance with a market share of 50%, though dominance may also be found where a lower market share exists. In order to establish the market share, it is necessary to define the ‘relevant market’,” said Kirstie Nicholson, of counsel at Lovells in Shanghai. “It isn’t clear whether the relevant software market in China comprises only genuine products or includes fakes. With no case law to look to for guidance, it isn’t clear at this stage how the Anti-Monopoly Enforcement Agency will approach the question of market definition,” she said.

1. Singapore Arbitrator Issue 4. 2008

► DONG ZHENGWEI PUTS MICROSOFT IN THE HOT SEAT 作者：葛黄斌，新加坡国际仲裁中心

By Prof Ge Huangbin, Head of China Desk Singapore International Arbitration Centre Address: City Hall 3 St Andrew’s Road Singapore 178958 Tel: + 65 6334 1277 Fax: +65 6883 0823 Email: gehuangbin@siac.org.sg Website: www.siac.org.sg Prof Ge Huangbin

20

Dong Zhengwei of Zhongyin sent a letter to the Ministry of Commerce, State Administration of Industry and Commerce, and National Development and Reform Commission the day before China’s new Anti-Monopoly law became effective, alleging Microsoft had used its dominant market share to manipulate software prices in China.

Dong has subsequently received a formal notice from the MOFCOM stating that anti-trust investigations would be conducted by its Department of Treaty and Law. The NDRC has also formally noticed him that his petition against Microsoft had been accepted and would be handled by the NDRC’s price monitoring department.

ISSUE 5.9

NEWS >>

UPDATE >>

Regulatory Zhonglun W&D Law Firm has signed a permanent legal counselling contract with the SINOPEC’s headquarters for the ‘Sichuan-to-East China Gas’ project.

The case has sparked global interest for several reasons.

The Anti-Monopoly Law – which took effect on 1 August – is closely based on anti-competition law in the European Union, where Microsoft faced a series of anti-trust investigations in the past decade and was fined more than US$613m in 2004 by the European Commission.

As China finds its feet with its AML and puts more bite into its intellectual property laws, this case will be one to watch closely as the software giant is both an alleged perpetrator of software monopoly and a victim of pirates.

微软巧辩反垄断指控 鉴

于盗版的微软产品在中国大行其道和中国监管机构确定“市场份额”的方 式，微软在面对中国境内首次反垄断调查时，或许有成功辩护的可能。 北京中银律师事务所合伙人董正伟在7月底向监管部门建议对微软开展反 垄断调查。他认为，全球软件巨头微软公司利用其在中国的主导性市场份 额操纵软件价格，主张对其处以10亿美元的罚金。微软全球副总裁张亚勤 对此迅速回应：“微软在中国不具备进行垄断活动的先决条件，因为盗版软 件横行，正版微软产品在中国的市场份额极低。”

盗版软件

商业软体联盟是追踪非法软件交易的行业组织，根据该组织2006年提供的 数据，中国电脑上安装的软件约82％为盗版。根据商业软件联盟的计算， 仅2005年，在中国因盗版软件造成的销售损失就高达39亿美元。 接受《亚洲法律杂志》采访的律师表示，在确定“主导性市场地位”的过程 中，反垄断法关注的焦点在于该公司是否有能力控制产品的价格、销量和 其它交易条件。 盛智律师事务所上海办事处高级顾问律师张小艺表示：“显然，正版软件生 产商无法控制盗版产品的销售，确定市场份额时，如将盗版产品在内，是不 合理的。因此，作为盗版软件的受害者，我对微软的市场利润率低于多数人 的预期并不感到意外。”

相关市场

“相关市场”也是确定公司产品的市场份额是否占主导地位的重要因素。路伟 上海办事处顾问律师Kirstie Nicholson表示：“假设某一家公司的市场份额为 50％，在存在更低市场份额的情况下，仍有可能出现主导性优势。为确定市 场份额，有必要明确“相关市场”。对于中国的相关软件市场是否仅由正版产品 和盗版产品组成，目前尚不明确。在无以往司法案例供参照的情况下，对于 反垄断执行机构如何解决市场定义的问题，目前尚不明确。” 该案例引发全球关注，有多个重要原因。《反垄断法》于8月1日生效，而 该法是参照欧盟反竞争法制定，过去十年，微软在欧盟境内面临一系列反垄 断调查，2004年被欧洲委员会处以6.13亿美元的罚金。 随着中国反垄断法的实施和对知识产权法重视程度的提高，该案例尤其 值得关注，软件巨头微软既是软件垄断方面被指控的对象，又是盗版软件 的受害者。 www.legalbusinessonline.com

O

n 28 August 2008, a signing ceremony was held at Dazhou Hotel, Dazhou, Sichuan Province, for the engagement of a permanent legal advisor for the ‘Sichuan-to-East China Gas’ project. Chen Wen, principal of Zhonglun W&D Law Firm, signed the permanent legal counselling contract with the SINOPEC’s headquarters for the ‘Sichuan-to-East China Gas’ project. Wang Chunjiang, deputy director of the afore-said headquarters, presented letters of engagement to Chen and Wang Zhijian, principal of Zhonglun W&D Law Firm, Chengdu branch. Also present at the signing ceremony was Dai Quyang, lawyer of Zhonglun W&D Law Firm, Chengdu branch.

The ‘Sichuan-to-East China Gas’ project, officially approved by the State Council of PRC on 9 April 2007, is SINOPEC’s number one project at the new historic starting point and is a significant project during the period of China’s 11th FiveYear-Long National Development Program. The said project, named by the State Council, is a significant national project which enjoys equal popularity with the ‘Three Gorges Project’, the ‘South-to-North Water Transfers’ project, the ‘West Gas to East China’ project and the ‘Qinghai-Tibet Railway’ project.

This particular project, when completed, will have great significance with respect to securing China’s energy safety, easing the imbalance between energy supply and demand, and furthering regional economic development.

Zhonglun W&D Law Firm, engaged as permanent legal advisor for the ‘Sichuan-East China Gas’ project, will render legal services in such fields as contracts management, tendering and bidding practice, management of HSE (health, safety and environment), land expropriation and residents relocation, application for project examination and approval, labour affairs, project insurance and litigation or arbitration, etc, and provide a legal framework for construction work.

“The legal counselling engagement for the ‘Sichuan-toEast China Gas’ project is another great opportunity for Zhonglun W&D Law Firm to render legal services for China’s exceptionally large construction projects, following its excellent service for the ‘South-to-North Water Transfers’ project, and the construction project of the 2008 Olympic Games – this was indeed a glorious but arduous task”, said Chen and Wang. Zhonglun W&D Law Firm will form a sevenmember-lawyer team to provide excellent and efficient legal services for the ‘Sichuan-to-East China Gas Project’.

Zhonglun W&D Law Firm Year established: 2003 Beijing address: 19/F Golden Tower, No.1, Xibahe South Road, Chaoyang District, Beijing, 100028, P.R.C Tel: 86-10-6440 2232 Fax: 86-10-6440 2915/6440 2925 Website: www.zhonglunwende.com E-mail: wanghao@zhonglunwende.com Contact: Wang Hao Total number of partners: 28 Total number of lawyers: 115 Offices: London, Paris, Lyon, Shanghai, Tianjin, Chengdu, Shijiazhuang, Languages: Chinese Mandarin, English, French, Korean, Japanese, German Key areas of practice: Corporate and securities, finance, real estate, IP, telecommunications, investment, M&A, commercial, energy, etc.

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Shanghai

Regulatory

New rules for private equity funds registered in Shanghai

Hong Kong’s Proposed Competition Law

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n 14 August 2008, Shanghai Financial Services Office, Shanghai Administration of Industry and Commerce, and Shanghai Finance Bureau jointly issued the Circular on Matters Concerning the Industrial and Commercial Register of Private Equity Enterprises in Shanghai (known as ‘the Circular’). The Circular contains the following provisions that necessitate attention:

Scope of application Pursuant to the relevant provisions, the Circular is applicable to the private equity enterprises and private equity management enterprises (known as ‘the Enterprises’). The Circular also provides that the private equity enterprises shall have the registered capital or capital contribution of no less than RMB100m, in which an individual natural person shareholder or partner shall make a capital contribution of no less than RMB5m. Meanwhile, the number of shareholders or partners shall be no more than 50 where the private equity enterprises are established in the form of limited companies or partnership enterprises; the number of shareholders shall be no more than 200 where the private equity enterprises are established in the form of companies limited by shares. In the case that a private equity management enterprise is established in the form of a company limited by shares, its registered capital shall be no less than RMB5m, while the paid-up capital shall be no less than RMB1m where the private equity management enterprise is established in the form of a limited liability company.

Investors of the Enterprises Given that the Shanghai Foreign Investment Committee, as the approval authority for foreign investors, does not participate in the enactment of the Circular, foreign investors will still encounter difficulties in investing in the Enterprises in practice.

Tax privilege Pursuant to the Circular, the Enterprises should be established in the form of companies or partnerships.

Where the Enterprises are established in the form of limited partnership, the business income and other income of the Enterprises shall be subject to the income tax payable by the partners only. Natural persons as general partners who are in charge of the affairs of limited partnership enterprises shall pay the income tax at the progressive tax rate of 5–35% of the taxable income which is determined based on the production and operation income of the individual industrial and commercial householders. However, where natural persons as limited partners who are not in charge of the affairs of the limited partnership receive the private equity returns through interest and dividends, the income tax will be payable at the rate of 20% of interest and dividends received.

Charles Qin : charles.qin@llinkslaw.com

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Charles Qin

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he Hong Kong Government has been considering the promulgation of a competition law for many years. Such law may finally be issued since a public consultation paper in relation to the draft law has been circulated for comments with the aim of passing the bill in the 2008-2009 legislative session.

Similar to other countries, the proposal seeks to prohibit two types of conducts when they have the purpose or effect of substantially lessening competition: “[participating] in agreements and concerted practices” and “abusing substantial market power.” The “agreements and concerted practices” prohibition focuses on horizontal arrangements, whereas vertical arrangements are instead evaluated under the “substantial market power” prong. Neither conduct is a “per se” infringement, though the suggested market share threshold which triggers review for “abusing substantial market power” is 40%. An independent Competition Commission would be established to issue guidelines specifying examples of anti-competitive activities and clarifying infringement thresholds, to investigate and determine whether an infringement has occurred, and to apply sanctions and remedies. This Commission would be authorized to impose civil penalties of up to HK$10 million for violation of the proposed law. A separate Competition Tribunal would also be established to review the rulings of the Commission, with the power to impose even more severe penalties. These administrative proceedings of the enforcement bodies would likely be less formal and swifter than the courts’, and the Tribunal’s decisions are appealable to the Court of Appeal.

Despite its efforts, the new Law raises additional issues. One major issue relates to how mergers should be considered. The paper suggested three options: (i) only completed mergers raising “serious competition concerns” would be investigated without clear definition for that term; (ii) include a merger provision but with a delay in enforcement; or (iii) exclude a merger provision but allow reconsideration after review of the new Law’s effect. Clearly none of the options is satisfactory.

Another issue involves the proposed Law’s exemptions and exclusions. “Government and statutory bodies” are controversially excluded, raising concerns of Government selfinterest. Other exceptions are relatively undefined and raise questions as to how and to whom they might apply, including for anti-competitive agreements with overriding economic benefits, operations of public services of general economic interest, and certain activities to be exempted by the Chief Executive on public policy grounds.

Will Hong Kong enhance its competitive edge by the enactment of this Law? Until these uncertainties are resolved and questions answered, the answer to this question will not be known for awhile.

Written by Jeanette Chan, partner Melissa Mao, summer associate Paul, Weiss Rifkind, Wharton & Garrison Unit 3601, Fortune Plaza Office Tower A No. 7 Dong Sanhuan Zhonglu Chao Yang District, Beijing 100020 PRC Email: jchan@paulweiss.com Ph: (8621) 5828-6300 or (852) 2536-9933

Jeanette Chan

ISSUE 5.9

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Singapore

Insurance

新加坡交易所优化上市公司公告模版

Comments on the draft of a new Chinese Insurance Law

上

市公司作为公众公司，需要将运营过程中的一些重要信息定期或 不定期的向公众披露，使得投资者或公众股东更好的了解公司的 运营情况，同时接受公众对上市公司的监督。公告作为信息披露 的一种方式，是维系上市公司和公众股东的极为重要的纽带。 为方便上市公司及时披露重要信息，亦为保证公众股东便捷了解公司 的新动态，日前，新加坡交易所（“新交所”）宣布优化其部分公告模版， 新模版将于2008年6月9日起启用。 新的公告模版主要针对一下几类公告： 1. 人事任命公告 根据证券期货法令要求，上市公司任命新的董事或重要高级管理人员，需 要及时向公众披露。通过新的公告模版，上市公司可以披露其任命或续聘 该董事或高管的原因、聘用目的、选聘过程及该人员与公司发展战略的关 联，便于投资者更好的了解公司的人事任命。 2. 任期终止公告 将原有的“辞职公告”更名为“任期终止公告”，明确该模版不仅适用董事及高 管的辞职，并可适用于其他的任期终止情况。上市公司亦可借此公告中向 股东披露该董事或高管其任期终止的相关信息。 3. 股份回购公告 在新的股份回购公告中，上市公司须批露股份回购后，其持有的库存股 及减少的股份数量。 4. 暂停办理过户登记公告 新的暂停办理过户登记公告模版，使得公司根据上市手册的相关要求，更 为方便的披露相关信息。 5. 列入观察名单公司的财务业绩公告 新交所将业绩表现达不到要求的上市公司列入“观察名单”，并要求该类公 司根据上市手册的相关规定，将其财务状况及时予以披露。该新的公告 模版有助于被列入观察名单的上市公司更为方便、更为有效的及时更新 其最新的财务状况。 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

翁慧婷 企業融資部專員

巫美清

Ph: (65) 6322-2237 Fax: (65) 6534-0833 E-mail: enghuiting@loopartners.com.sg

俊昭法律事務所 88 Amoy Street, Level Three Singapore 069907

翁慧婷

www.legalbusinessonline.com

I

n August of this year, a revised draft of the Chinese Insurance Law was approved by the State Council. Due to dramatic differences in this proposed law; it can be most aptly characterised as a completely new law rather than simply a revised version.

The current Chinese Insurance Law, which came into effect in 1995, has long been criticised by insurers, brokers, agents, loss adjustors and other individuals in the insurance business. Even though it was revised once in 2002, the predominant view was that this was still insufficient, particularly considering the rapid growth in the insurance industry and the entrance of more and more foreign companies in this field. The four most common complaints are explained below.

First, a large part of China’s Insurance Law is transplanted from English and German law. This includes relevant terminologies, principles, stipulations and rules. The interaction of these rules from abroad has produced conflict, contractions and inconsistencies in their application to Chinese law.

Secondly, although Chinese law has borrowed significantly from other countries, many important insurance principles and much terminology have been excluded. For instance, warranty clauses are often used in insurance policies in China, but there are no laws or regulations which explicitly mention these clauses except in Chinese Maritime law.

Thus, if a warranty clause dispute does not refer to marine insurance, courts tend to think that it is void.

Thirdly, the law is outdated and impractical. The insurance market has grown by over 150% over the last seven years and the law has not adequately kept pace with all of the changes. Transactions are becoming much more diverse and complex in nature, many of which are not properly accounted for in the law. Differentiated regulations for life and property insurance not being adopted, for example, has resulted in more than a few disputes.

Although the draft of the new insurance law is still a long way from coming into effect, many experts, including insurance lawyers, are satisfied that the changes to the law address many previous concerns. The key improvement is in clarity. Many definitions relevant to insurance contracts (insurable interest, insurance target and insurance value) have been revised.Interpretation has always been a frequently debated topic in China in the insurance field, as legal terms were often seen as being confusing, inconsistent and unclear.

This draft is effective in increasing the clarity of insurance legal terms and also making them more suitable to the Chinese legal system, particularly with regard to stipulations.

It is probably too early to make a complete assessment on the new Insurance Law, as it is still a long way from coming into effect and many more revisions may be made. In fact, four years ago the Chinese Supreme Court published a draft on the Explanation of the Insurance Law. To this date, however, the Supreme Court’s draft has still not come into force in China. Maybe we should not hold our breath for the coming into effect of the new Chinese Insurance Law.

Zhan Hao, Managing Partner Grandall Legal Group Beijing Office Tel: 010-65890699 Fax: 010-65176801 E-mail: zhanhao@grandall.com.cn Web: www.grandall.com.cn

Zhan Hao

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news in brief >> LAWYERS PROMOTE TIANJIN OPPORTUNITIES IN HONG KONG Beijing-based Run Ming Law Office and Jones Day jointly organised a seminar and invited officials of Tianjin Commission of Commerce to speak on how the investment environment and policies of the Tianjin Binhai New Area will affect Hong Kong companies.

At the seminar, which was held at Jones Day’s Hong Kong office, Liu Yi and Ron Ma, partners of Run Ming, briefed the participants with laws, regulations and policies of Tianjin Binhai New Area, focusing on financing, real estate and tax.

The seminar panel also included Jones Day’s senior partner Barbara W.K. Mok, Chen Liming, Tianjin Commission of Commerce’s deputy director and its two department heads in charge of foreign investments, Hu Xiaopian and Zhang Wengang.

They answered questions such as whether foreign investment is restricted in real estate. Given that Tianjin is the new hot spot for investments, this seminar gave Hong Kong-based companies a face-toface opportunity to consult with Tianjin officials.

“Many overseas enterprises and investors have shown great interest in investment in Tianjin and participating construction of Binhai New Area. So we are planning to invite Tianjin Commission of Commerce to organise a series of seminars in other region such as Japan and Korea,” said Wang Yadong, executive partner of Run Ming.

REGION

ACLA strengthens local profession through international training programs

B

uilding on the success of an initiative to promote international cooperation and capacity building, the Australia-China Legal Profession Development Program will run again in 2009. It continues to be supported by the International Legal Services Advisory Council (ILSAC) and funded

by AusAID. The program is facilitated by the Law Council of Australia and the Commonwealth Attorney-General’s Department, in cooperation with the Chinese Ministry of Justice through the All China Lawyers Association (ACLA).

The aim of this legal exchange program is to help Chinese lawyers draw knowledge and expertise from their Australian counterparts in the public and private sectors, as well as to promote understanding and goodwill between the Australian and Chinese legal sectors.

This program is similar to the Lord Chancellor’s Training Scheme for Young Chinese Lawyers (LCTS) held in the UK, which was established in 1989 by the China Law Council in association with the British Council, the ACLA and the Ministry of Justice.

The LCTS aims to give young lawyers an understanding of English law and the English legal system in both contentious and non-contentious work and to facilitate the building of relationships between the UK and Chinese legal professions.

In the four-and-a-half month placement program in Australia,

now in its third year, four to six selected lawyers will take on an education program and study tour in Melbourne, Canberra and Sydney, followed by placements in private law firms and legal institutions, such as the courts, government departments and agencies. As a component of the program, participants develop short presentations on topics relevant to their studies and experience in Australia after they complete the program.

As a demonstration of just how influential the program has been, one of the participants planted his ideas from Australia in China.

“My legal aid centre has got some significant ideas and skills for development, such as the direction of starting a project, financing solution and so on,” said Chen Dong, a 2007 participant.

“I have introduced the Australian legal aid system to them and shown slides of my experience in Australia to lawyers in Xinjiang. Some of them are really attracted to this program and some are quite interested in their legal system.”

Applications from prospective participants for the 2009 program close on 31 October 2008, and according to Lan Hong, head of ACLA’s international section, the 2009 program has already attracted interest from many lawyers, particularly young lawyers.

律师在香港推广天津投资机遇

总部位于北京的润明律师事务所近日联合美国众达律师 事务所，共同邀请天津市商务委员会官员在众达香港办 事处举办了“天津投资政策研讨会”。 在研讨会上，润明合伙人刘屹和马骋就天津滨海新区 金融业、房地产业以及税收方面的具体法律法规和政策 向与会企业进行了说明，包括外商投资房地产业的宏观 调控政策、“港股直通车”、滨海新区给以金融机构的优 惠政策等热点问题。 研讨小组还包括众达的高级合伙人莫玮坤、天津市商 委常务副主任陈黎明、外资管理处副处长胡孝骈以及负 责招商引资工作的副处长张文刚。他们就天津滨海新区 的投资政策和环境进行了介绍，并解答了与会企业代表 提出的问题。 润明执行合伙人王亚东表示：“目前，许多境外企业、 投资人对在天津投资和参与“滨海新区”的建设表现出浓厚 兴趣。润明与众达将考虑继续与天津商委配合在其它地 区，如日本、韩国，举办类似的研讨会。”

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中华全国律师协会通过 国际培训项目提高本地 律师业实力

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两届国际合作和专业培训活动成功进行 后，中澳法律职业发展项目将于2009年再 次启动。此项目是中国司法部、中华全国律师协 会与澳大利亚司法部和澳大利亚律师协会之间 签署的合作交流计划。澳大利亚国际法律事务咨 询委员会（ILSAC）将继续提供支持，澳大利亚 国际/海外发展署（AusAID）也将继续为此项目 提供赞助。 该法律职业发展项目旨在帮助中国律师学习澳 大利亚政府部门和商务律师事务所同行的专业知 识和执业经验，同时促进澳大利亚和中国法律领 域之间的理解和友好合作。 该计划与英国司法大臣办公室中国青年律师培 训项目（LCTS）类似。LCTS项目于2001年启 动，它是自1989年开始由中国法委员会与司法部 和中华全国律师协会共同成功组织的青年律师培 训项目的后续项目。 LCTS 项目的宗旨是使中国律师获得商法、诉 讼、法庭程序及法律事务管理方面的实际经验。 同时推动英国和中国的法律专业人士建立良好的 合作关系。 中澳法律职业发展项目现已进入第三届，计划 选派6名中国律师管理人员和律师于2009年2月 初赴澳大利亚进行为期4个半月的考察和培训。 项目将安排参训学员学习澳大利亚法律体系，并 在澳大利亚商务律师事务所、律师协会、政府部 门或国际公司法律顾问室学习研究。离开澳大利 亚前，每位参训学员要准备一份简明的“行动计 划”，讲述如何学以致用。回国后，参训学员还 要将研究成果在国内予以宣传。 2007年项目参训者之一表示：“此次培训为我 的法律援助中心提供了很多重要的发展理念和技 巧，比如开始某一项目的方向定位、融资解决方 案等。我已向在新疆的律师同事们介绍了澳大利 亚的法律援助体系，并用幻灯片演示我在澳大利 亚的学习体验。有些律师对该活动兴趣浓厚，有 些则热衷于了解澳大利亚的法律体系。” 2009年活动报名的截止日期为2008年10月 31日。据中华全国律师协会国际部主任蓝虹介 绍，2009年活动已经吸引大量律师关注，尤其 是青年律师。

us report Merger turns sour for French office with US ambitions Taylor Wessing’s French office and US firm Nixon Peabody have locked horns in a legal battle, following botched merger talks between the firms.

Taylor Wessing France claims Nixon poached 13 of its partners in violation of a non-disclosure agreement and is consequently seeking an injunction to prevent the hire and suing the firm for US$5m.

Nixon Peabody is allegedly responding by seeking an injunction and US$1m plus punitive damages from Taylor Wessing for tortuous interference with advantageous business relations.

Due to the nature of Taylor Wessing’s firm structure, each of the international offices operates as a separate legal entity.

Alston & Bird proceeds with West Coast merger Alston & Bird is set to merge with West Coast firm Weston Benshoof Rochefort Rubalcava & MacCuish, a deal that will provide Alston with its first LA outpost.

Atlanta-based Alston already has six domestic offices, and the merger with 83-lawyer Weston will create a combined firm of almost 900 lawyers.

This total will be boosted with the addition of an extra 12 IP lawyers, including three partners, that

the firm recently poached from the Silicon Valley office of Akin Gump.

Bakers on a roll Baker & McKenzie has shattered the US$2bn revenue mark, ending the fiscal year 2008 in June with a figure of US$2.19bn, and a reported increase of almost 20% in global fee income.

Firm-wide profits per partner have also improved from last year, with the US giant reporting double-digit growth – a 20% increase to US$1.206m from US$1.063m last year.

Hammonds on the prowl for transatlantic merger partner Hammonds is moving full steam ahead with plans to revamp its US strategy and initiate a transatlantic merger.

The firm – whose US business is worth £15m – is said to be considering three strategies at the moment: a merger with one US firm, a strategic alliance which would lead to a more formal association, or maintain the status quo and develop its existing relationships with US corporates and law firms.

Hammonds’ managing partner has confirmed that if a merger does win out, the firm would prefer to match with a firm that has a significant presence in Eastern Europe and/or Asia.

¨ ROUNDUP • Heller Ehrman may be on the lookout for a new DC managing partner, following the loss of its current Washington office head Geoffrey Aronow to Bingham McCutchen • Reed Smith will soon set up in Silicon Valley following the hire of Morrison & Foerster partner Rich Scudellari • Hunton & Williams recently raided Akin Gump for nine partners, who are to be distributed throughout the firm’s offices in Washington DC, Houston and Los Angeles • Orrick Rambaud Martel has appointed Yves Lepage as the first head of its Paris project finance group • Thelen Reid Brown Raysman & Steiner has lost another of its name partners, with tech and IP attorney Richard Raysman bidding the firm goodbye to join New York’s Otterbourg Steindler Houston & Rosen • US mega-firms Shearman & Sterling and Sullivan & Cromwell have bagged top roles in insurance giant Allianz’s US$9.8bn sale of Dresdner Bank to German rival Commerzbank. Once the merger is complete, Commerzbank will lead in the German private and business banking market

www.legalbusinessonline.com

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BEIJING

International Tax

Dechert gets new Beijing head from DLA Piper

First Tax case in the Hong Kong High Court in 2008 Re: Compensation for Loss of Office

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ur tax case to the High Court – against the Hong Kong Commissioner of Inland Revenue - resulted in a substantial win for our client. This was the first appeal to the Hong Kong High Court on a tax matter in 2008; and the Court took a different view on the matter than the Hong Kong IRD. The main tenet, that compensation for loss of office or employment is tax free in Hong Kong, remains intact, although the amount paid as compensation can be the subject of further findings. The hearing was on 29 May 2008 and the judgment was handed down by Hon J Burrell; on 26 June 2008.

Procedure In this case, and to shorten the process, we by-passed the Board of Review on a point of law and appealed the Inland Revenue’s determination directly to the High Court.

The Facts Our client, a German National, was first employed by the German bank “HvB” in 1976. He was regularly promoted within the bank. In 2000 he was posted to the Singapore Branch and in 2003 he was posted to the Hong Kong branch on a 3 year employment contract, all negotiated and agreed with HVB AG in Munich. In 2005 HvB was taken over by an Italian bank and there was no continuing role for our client.

He agreed a termination arrangement in Munich in September 2005 and worked until December 2005 transitioning the new personnel into post. Compensation of HK$18.3m was made. The employment contract described compensation arrangements in the event of a termination, but the amount actually agreed and paid to the taxpayer was different, and subject to a separate written agreement.

The HK IRD assessed the whole amount because parts of the termination were mentioned in the employment contract, and they refused to accept that the whole payment was a separate compensation payment. To assist their argument, they split the payment into three elements, and argued that each part was taxable in Hong Kong. In our view this was overridden by the termination agreement, and, even if it was not, it related to his 29 years with the bank and should be pro rated accordingly. The IRD refused to accept either argument, and argued that it was paid according to the 2003 contract. In our view, splitting out the termination payment was an analysis invented by the IRD.

The Judgment The High Court agreed to our argument that HK$6.3m of the amount in dispute was a compensatory amount and tax free, but sided with the IRD on $8.9m of the payment made. Our client is now appealing the latter part of the High Court’s Decision.

Debbie Annells, Managing Director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong. www.azuretax.com, a member of AzureTax Group (Tel) +852 2123 9339 (direct line), (Main Line) +852 2123 9370, (Fax) +852 2122 9209 Registered with the Chartered Institute of Taxation for purposes of anti money laundering legislation.

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Debbie Annells

S firm Dechert has netted US-trained Henry Wang as managing partner of its newly-opened Beijing office to “bridge the legal and cultural gaps between the East and West”, its chairman Barton Winokur said. Wang, previously general counsel for Shanghai General Motors, orchestrated the legal structure for the company’s Henry Wang, investments while he was with the ChineseDechert US joint venture company.

Wang’s familiarity with government regulations and practice as well as his ability to structure transactions was obviously at the top of his resume. A Chinese native, Wang graduated with a Bachelor’s degree from the Shanghai Institute of Foreign Languages and worked for the Chinese Foreign Ministry and the United Nations before he obtained his law degree from the University of Wisconsin in the US and a Master’s degree in International Relations from the University of Chicago.

He left Shanghai General Motors to join DLA Piper in 2006 and represented Boeing, GMAC, Toyota, the Soros Fund, Blackstone, UniCredit and Iveco, among others. His focus is on structuring domestic and cross-border mergers & acquisitions, corporate finance, joint ventures and wholly foreign-owned entities, among others, and represents major global corporations, financial institutions and private investors in connection with their corporate transactions involving China.

Earlier this year, Dechert opened its first Asian office in Hong Kong after entering into a formal association with local firm Hwang & Co. It obtained its licence to open its Beijing office in August.

前欧华合伙人加入岱恪 北京代表处 美

国岱恪律师事务所北京代表处近日成立，并聘请前欧华北京合伙 人Henry Wang担任其北京办公室管理合伙人。岱恪主席Barton Winokur表示，希望Henry Wang能发挥桥梁作用，帮助客户跨越东西方 法律和文化之间的鸿沟。Wang此前曾担任中美合资的上海通用汽车总法 律顾问，为公司投资提供法律保障。 Wang 与政府监管部门和业内人士保持良好关系，可为交易确定合理 架构，是其最突出的专业优势。Wang是中国人，毕业于上海外国语大 学，获学士学位，此后进入外交部和联合国工作，后在美国威斯康星大 学（University of Wisconsin）获法学学位，并在芝加哥大学获国际关系 硕士学位。 2006年，Wang离开上海通用加盟欧华，曾为波音、通用、丰田、索罗 斯基金、黑石基金、联信征信和Iveco等企业提供顾问服务。Wang 擅长 的业务领域包括：跨境并购交易结构优化、公司融资、合资和外商独资企 业等，曾为多家大型跨国公司、金融机构和私人投资者提供服务，协助其 完成与中国相关的商务交易。 今年初，岱恪与香港当地的Hwang & Co律师事务所正式联合后，在香港 成立首个亚洲办事处。上月（8月），岱恪获北京代表处执照。 ISSUE 5.9

NEWS >>

REGION

BEIJING

Clifford Chance elects global corporate head to Asia MP

Cadwalader loses sole Beijing partner to Allen & Overy

F

ormer managing partner of Cadwalader Wickersham & Taft’s Beijing office, Mark Roppel, has joined Allen & Overy, leaving Cadwalader’s Beijing office partnerless with five associates. Roppel’s departure comes after recent news that 96 associates from the firm’s capital and finance groups were laid off. Cadwalader managing partner Bob Link had made an emergency visit to the Beijing office after Roppel’s defection to Allen & Overy last month.

Cadwalader said that Roppel’s departure is unrelated to news of 96 lawyer redundancies affecting the firm’s capital markets and finance groups.

Roppel joined Cadwalader’s New York corporate practice in 2005 from Shearman & Sterling’s New York mergers & acquisitions department, transferring to Beijing in 2006.

F

ollowing the retirement of former Asian managing partner Jim Baird due to ill health, Peter Charlton, currently the global head of Clifford Chance’s corporate practice, has been Jim Baird, CC elected to be Baird’s successor. He is moving from London to Hong Kong in November as the firm’s new regional managing partner.

Charlton specialises in corporate finance, domestic and cross-border M&A, restructurings, buyouts, takeovers and stock exchange matters.

He has been a partner at Clifford Chance since 1986 and was appointed head of the global corporate practice in 2005. He was previously managing partner of the firm’s London office.

“In the past 12 months, business and investment flows around the globe have changed beyond all recognition, and Asia increasingly sits at the heart of the world economy,” said Charlton, who has been a regular visitor to the region in the past few years as the head of the corporate practice.

“Leading Clifford Chance in Asia is the most exciting challenge in the firm

www.legalbusinessonline.com

today, and growing our business in the region is critical to the firm’s success,” said Charlton.

According to the firm, the process of appointing a new global head of the corporate practice will begin shortly.

高伟绅全球公司业务 主管升任亚洲执行合 伙人

高

伟绅前任亚洲执行合伙人Jim Baird因健 康问题退休后，全球公司业务主管Peter Charlton成为Baird的继任者。Peter Charlton将 于11月由伦敦赴香港任职，成为高伟绅新任地区 执行合伙人。 Charlton犹擅长公司融资、国内和跨境并购、 重组、全部收购、接管和股票交易业务。自1986 年以来，Charlton便担任高伟绅的合伙人，2005 年任全球公司业务主管。Charlton曾任事务所伦 敦办事处管理合伙人。 过去几年内，Charlton作为公司业务主管，曾 定期到亚洲工作和视察，他表示：“过去12个月 内，全球的业务和投资流向变化超出所有人的预 料，亚洲正日益成为全球经济核心。” Charlton认为：“当今，在亚洲地区带领高伟绅 发展是最激动人心的挑战，亚洲地区的业务增长 是事务所获得成功的重要因素。” 高伟绅透露，将在短期内确定全球公司业务主 管的新人选。

凯威莱德唯一北京合 伙人转投安理

凯

威莱德律师事务所北京代表处管理合伙人 Mark Roppel已加盟安理，使凯威莱德北 京办公室只剩五位律师留守。近期有消息称， 凯威莱德资本和金融业务部门有96位律师被解 聘，Roppel的离职正值此敏感期。上月，Roppel 转投安理之后，凯威莱德执行合伙人Bob Link紧急 赶赴北京稳定大局。 凯威莱德表示，Roppel的离职与事务所资本 市场和金融业务部裁减96名律师的新闻并无关 联。2005年，Roppel离开Shearman & Sterling律 师事务所的纽约并购业务部，加盟凯威莱德纽约 办事处的公司业务部，2006年调至北京任职。

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NEWS >>

news in brief >> MAYER BROWN JSM EXPANDS TAX PRACTICE Mayer Brown JSM has expanded its tax team in Beijing with the addition of one consultant and two lawyers.

Julie Zhang, a specialist in tax planning and tax implications, leads the tax practice in China, and joins Mayer Brown JSM from Baker & McKenzie where she assisted multinational Julie Zhang, Mayer Brown JSM corporations on tax structuring strategies and offered advice on international taxation to PRC enterprises investing overseas. The two new lawyers include Kevin Wang and Xin Jiang, both of whom have strong tax capabilities as well as M&A backgrounds.

Mayer Brown JSM拓展税务业务

Mayer Brown JSM新增一位顾问律师和两位律师，继续 扩充北京办事处税务团队。 Julie Zhang是税务计划和税务执行领域的专家，是 中国的税务领域权威人士，加盟Mayer Brown JSM之前 曾在贝克∙麦坚时任职，协助跨国公司制定税务结构策 略，并向投资海外的中国企业提供国际税务方面的顾问 服务。两位新律师分别是Kevin Wang 和 Xin Jiang，均 有深厚的税务专业实力和并购背景。

HONG KONG LAWYERS JAILED FOR HK$2.15bn SCAM Three lawyers who were charged with conspiracy to defraud in a scam involving HK$2.15bn have been jailed for up to 33 months. The two partners of Koo and Partners, Fan Cho-man and Donald Koo Hoi-yan, were sentenced to 33 months and 24 months in jail respectively. Partner at Deacons Simon Lai Sau-cheong received a 30-month jail sentence.

All allegedly conspired with Zhou Zhengyi – exproperty tycoon in Shanghai – to defraud Hong Kong’s stock exchange, the Securities and Futures Commission and the shareholders of ImGo in relation to the “false representation they made in the joint announcement and composite offer and response document regarding the acquisition of ImGo”, ICAC said.

香港律师因涉21.5亿港元的欺诈案入狱

三名被控参与价值高达21.5亿港元欺诈案的律师被判入 狱，最高刑期达33个月。顾恺仁律师事务所合伙人范楚 文和顾恺仁分别被判入狱33个月和24个月。的近律师行 合伙人黎寿昌被判入狱30个月。 所有获罪律师均被控与上海前地产大鳄周正毅合谋欺 诈香港联交所、证券及期货事务监察委员会和建联通股 东，廉政公署表示：“有关被告在为收购“建联通”发表的联 合公告、收购建议和回应的综合文件上虚假陈述。”

► LATERAL HIRES Name

Leaving

Going to

Practice

Location

Lan Lan

Tianlun & Need

Jincheng & Tongda

International practice

Beijing

Mark Roppel

Cadwalader Wickersham & Taft

Allen & Overy

M&A

Beijing Beijing

James Luo

Motorola

Bird & Bird

Intellectual property

Thomas Man

Orrick

Lovells

M&A

Beijing

Mark Allen Cohen

US Embassy

Jones Day

Intellectual property

Beijing

Stephen S. Birkett

Hong Kong Securities and Futures Commission

Morrison & Foerster

Capital markets, Securities

Hong Kong

Luke Gannon

Freehills

DLA Piper

Funds

Hong Kong

Michael KS Chan

Jones Day

K& L Gates

M&A, Securities

Hong Kong

Gavin Lewis

UBS AG

Herbert Smith

Litigation

Hong Kong

Cadwalader

Allen & Overy

Allen & Overy takes Cadwalader’s sole Beijing partner Allen & Overy has bolstered its capital markets offering with the hire of Mark Roppel, the former managing partner of Wall Street firm Cadwalader Wickersham & Taft’s Beijing office.

Roppel, who took the helm at Cadwalader’s Beijing office in 2006, is now based in A&O’s Shanghai office as a corporate practice partner, but is also expected to split his time between Beijing and Hong Kong.

A&O’s head of US law, David Johnson, said: “With his immense experience, Mark will immediately broaden our US M&A capabilities and significantly strengthen our existing capital markets practice in Hong Kong, China and across the region.”

安理将凯威莱德唯一的北京合伙人招至麾下 安理律师事务所将华尔街律师事务所凯威莱德北京 办事处前执行合伙人Mark Roppel招至麾下，增强其 资本市场领域的专业实力。 Roppel于2006年担任凯威莱德北京办事处合伙 人，现在安理上海办事处担任公司业务合伙人，预计 未来工作会往返于北京和香港。 安理美国法律主管David Johnson表示：“Mark拥有 丰富经验，可立即增强安理在美国并购领域的服务实 力，并巩固事务所在香港、中国和亚太地区资本市场 业务的实力。”

鸿鹄将摩托罗拉的知识产权专家招至麾下 知识产权专家罗正红现在北京担任鸿鹄律师事务所 亚洲执法业务主管。罗正红此前曾任摩托罗拉公司高 级知识产权顾问律师，负责在中国大陆、香港、台湾、 日本、韩国和越南的知识产权执法活动和诉讼。 罗正红对于处理各种类型的知识产权事务均有丰富 经验，包括涵盖专利、商标、版权和设计的争议和非争 议知识产权事务、知识产权执法策略的筹备、负责向 法律制订者和知识产权执法机构的游说工作以及就特 许授权问题与中国跨国企业谈判等。 鸿鹄在香港和北京的知识产权团队提供完善的争 议和非争议知识产权服务。事务所可通过自己的商标 代理机构Bird & Bird IP (Beijing) Co 在中国直接申 请商标。

UBS AG Motorola

Bird & Bird

Bird & Bird gets IP specialist from Motorola Intellectual property veteran James Luo is now heading Bird & Bird’s Asian enforcement practice in Beijing. He was previously Motorola’s senior IP counsel and in charge of IP enforcement and litigation in mainland China, James Luo Hong Kong, Taiwan, Japan, South Korea and Vietnam.

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Luo has extensive experience in all types of contentious and non-contentious IP work covering patents, trademarks, copyright and design, preparation of IP enforcement strategies, handling lobbying efforts with law makers and IP enforcement authorities and negotiation of royalty licences with Chinese multinationals.

Bird & Bird’s intellectual property team in Hong Kong and Beijing provides the full range of contentious and non-contentious IP services. The firm is able to file trademarks directly in China through its own trademark agency Bird & Bird IP (Beijing) Co.

Herbert Smith

Bank in-house counsel returns to Herbert Smith Making the move in-house has become somewhat commonplace for today’s lawyer, but a move in the other direction – from in-house to private practice – is something that is much harder to pull off.

Not so for Gavin Lewis who has joined Herbert Smith’s Hong Kong office as a partner. Lewis’ move brings the number of partners in Herbies’ Hong Kong litigation team up to five. Lewis will link up with Herbies’ litigation and contentious regulatory practice after having spent the last two years at UBS ISSUE 5.9

NEWS >>

AG heading up the investment bank’s litigation and regulatory inquiries unit for Asia-Pacific.

Lewis, who first joined the firm in 1996, had advised clients involved in investigations by the Securities and Futures Commission and the Independent Commission Against Corruption in Hong Kong.

银行法律顾问重返史密夫 对于现今的公司律师而言，离开商务律师事务所而加 入企业法务部已司空见惯，但由公司内部律师转为商 务律师的反向转变则很少出现。 此前曾在瑞士银行任职两年，担任投资银行亚太 区诉讼和监管咨询业务组负责人的Gavin Lewis一反 常规，加盟史密夫律师事务所，担任香港办事处合伙 人。Lewis加盟后，将参与诉讼和争议性监管业务， 他的加盟使史密夫香港办事处诉讼团队的合伙人增 至五位。 Lewis曾于1996年第一次加盟该事务所，主要为 涉及香港证券及期货事务监察委员会和廉政公署 （ICAC）调查的客户提供顾问服务。

Orrick

Lovells

Lovells acquires M&A lawyer for Beijing office Lovells has appointed Thomas Man as a partner for its Beijing office.

Man, a Shandong native, came to the firm from Orrick where he acted on high-profile M&As, divestitures and JVs. Widely known as a ‘greenfields’ expert, Man was also Thomas Man formerly a corporate and securities partner in the Chicago, Beijing and Shanghai offices of Baker & McKenzie.

Man currently serves as one of only two foreign legal advisors appointed to the drafting committee of China’s Institute of Evidence Law and Forensic Science, which was commissioned by the Supreme People’s Court to draft the first Uniform Rules of Evidence for all Chinese courts.

The move marks the third time this year that a high-profile partner has made the move to Lovells.

Last month banking & finance guru Owen Chan joined the firm from Stephen Harwood & Lo and earlier this year corporate partner Fred Chang.

路伟为北京并购团队再添一员 路伟任命满运龙担任北京代表处合伙人。满运龙是 山东人，此前曾在奥睿律师事务所受理高端并购、资 产剥离和合资项目。满律师此前曾在贝克∙麦坚时律 师事务所芝加哥、北京和上海办事处担任公司和证券 业务合伙人。 满运龙现为中国证据科学研究院起草委员会任命的 两位外国法律顾问之一，最高人民法院委托该机构起 草首部《统一证据规定》，供所有中国法院使用。 满运龙的加盟标志着今年第三位高级合伙人加盟 路伟。上个月，银行和金融法资深律师Owen Chan 离 开罗夏信加盟路伟，今年初，公司业务合伙人张羲淳 加盟路伟。

US Embassy

Jones Day

Intellectual property expert hops to Jones Day Mark Allen Cohen, senior intellectual property attache www.legalbusinessonline.com

at the US Embassy in Beijing, has joined Jones Day’s Beijing office as of counsel, focusing on intellectual property and technology transfer matters.

Cohen served as an attorney-adviser for the Office of International Relations of the US Patent and Trademark Office and was involved in bilateral patent and trademark prosecution, Internet copyright enforcement, civil litigation technical assistance, anti-monopoly law, domain name dispute resolution, standards setting and technology transfer initiatives.

知识产权专家跳槽至众达 Mark Allen Cohen（柯恒）曾任北京美国大使馆高 级知识产权专员，现加盟众达律师事务所北京办事 处，担任顾问律师，专业领域为知识产权和技术转让 事宜。 Cohen 曾担任美国专利和商标局国际关系办公室 顾问律师，曾参与双边专利和商标诉讼、互联网版权 执行、民事诉讼技术协助、反垄断法、域名纠纷解决、 标准确立和技术转让事务。

The Hong Kong SFC

Morrison & Foerster

Morrison & Foerster hires corporate finance veteran Morrison & Foerster’s securities presence in the region is getting a boost after adding Stephen Birkett to its Hong Kong team.

Birkett’s expertise includes securities regulatory matters, Stephen Birkett and he joined the firm from the Securities and Futures Commission in Hong Kong, where he served for three years as senior director of Corporate Finance. Before that, he was a partner at Johnson Stokes & Master (now Mayer Brown JSM) where he was head of Corporate Finance.

Birkett has more than 20 years of experience in handling corporate finance transactions in Hong Kong and also London.

the arm for its China cross-border capabilities. The firm opened its second office in China in May this year and more recently absorbed nine lawyers from Taipei-based firm J&J Attorneys-at-law.

高盖茨将众达合伙人招至麾下 高盖茨宣布，公司业务合伙人Michael KS Chan正式 加盟事务所香港办事处。 Chan 此前曾在众达担任合伙人，是著名的并购和 证券专家，在风险资本、私募股权投资、公司充足和融 资领域有独特建树。 Chan 的加盟不仅能使事务所在相关领域的实力大 大加强，还将拓展事务所在中国提供跨境服务的实 力。今年5月，事务所在中国开设第二家办事处，近期 还从台北文利申法律事务所吸引9位律师加盟。 Freehills

DLA Piper

Head of funds from Freehills moves to DLA In setting up a new transactional funds practice dedicated to its clients on equity capital markets and M&A in Asia, DLA Piper has hired Freehills’ partner and head of funds Luke Gannon to head the practice in Hong Kong. Gannon said he decided Luke Gannon to join DLA Piper because it would give him more opportunity to work cross-border and experience a new culture. “Hong Kong is one of the biggest financial centres in the world; it’s still the gateway to China,” he said.

Freehills律师事务所基金业务主管加盟欧华 欧华致力于开拓全新的交易基金业务，为亚洲地区股 权资本市场和并购领域的客户提供服务，近日成功吸 引Freehills的合伙人兼资金业务主管 Luke Gannon 加盟香港办事处。Gannon表示，加盟欧华的原因在 于，新事务所将为他提供更多参与跨境业务的机会， 且能够体验全新文化。他表示：“香港是全球最大的金 融中心之一；也是通往中国的门户。”

美富招募公司融资专家 Stephen Birkett加盟美富香港团队后，事务所在该 地区证券领域的实力如虎添翼。 Birkett的专长包括证券监管事务，加盟事务所之 前，他曾在香港证券及期货事务监察委员会（SFC） 担任高级公司融资主任达三年。在SFC任职之前， 他曾是孖士打律师行（现Mayer Brown JSM）合伙 人，担任公司融资业务主管。 在处理香港和伦敦的公司融资交易方面，Birkett 拥 有20余年从业经验。

Jones Day

K&L Gates

K&L Gates lures Chan from Jones Day K&L Gates announced that it has secured the services of corporate partner Michael KS Chan in its Hong Kong office.

Chan, who was previously a partner at Jones Day, is a noted M&A and securities specialist who has particular expertise in venture capital and private equity investments, corporate restructurings and finance.

The move is not only expected to bolster the firm’s offering in these areas as well as being a shot in

Hong Kong

Shanghai

Linklaters relocates capital markets partner to Shanghai In response to the rapid growth and increasing levels of sophistication of China’s capital markets, Linklaters’ partner William Liu has relocated from Hong Kong to Shanghai. The move has positioned Linklaters as the first international firm to offer clients the services of a China-based debt and equity-linked specialist. Liu’s significant experience in international and domestic capital markets including public debt, equity and equity-linked deals as well as illiquid investments is further strengthen the firm’s China capital markets.

年利达将资本市场合伙人调至上海 为应对中国资本市场的快速发展和交易复杂程度的 不断提升，年利达将合伙人William Liu由香港调至上 海。Liu在国际和国内资本市场拥有丰富经验，包括公 共债务、股权和股权相关交易和非现金投资，他的调 任将进一步巩固年利达在中国资本市场的地位。

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FEATURE | ALB China Hot 25 >>

L-R: Liu Wei, DLA Piper; Wang Zhongde, Dacheng; John Chu, Jun He; Wang Jiabin, Lifang & Partners; Dong Zhengwei, Zhongyin; Lawrence Liu, ACC China

Over the last 12 months, a wealth of lawyers have set our news room abuzz. In this year’s ALB China Hot 25 we have again catalogued the feats of those who made a difference, made an impact, or went beyond the call of duty.

Now in its fifth year, the ALB China Hot 25 provides an admittedly subjective overview of the past year, listing those legal personalities who have been exceptional in their field.

The purpose of this article, as always, is not to offend or serve as a definitive guide to the industry but, rather, to entertain 30

ISSUE 5.9

FEATURE | ALB China Hot 25 >>

L-R: Liu Wei, DLA Piper; Wang Zhongde, Dacheng; John Chu, Jun He; Wang Jiabin, Lifang & Partners; Dong Zhengwei, Zhongyin; Lawrence Liu, ACC China

Over the last 12 months, a wealth of lawyers have set our news room abuzz. In this year’s ALB China Hot 25 we have again catalogued the feats of those who made a difference, made an impact, or went beyond the call of duty.

Now in its fifth year, the ALB China Hot 25 provides an admittedly subjective overview of the past year, listing those legal personalities who have been exceptional in their field.

The purpose of this article, as always, is not to offend or serve as a definitive guide to the industry but, rather, to entertain 30

ISSUE 5.9

THE SHAKERS

FEATURE | ALB China Hot 25 >>

Name: Jonathan Zhou 周志峰 Title: Managing partner of Beijing office Firm/Organisation: Fangda & Partners Location: Beijing/Shanghai

Why hot: Jonathan Zhou, founding partner of Fangda and managing partner of the firm’s Beijing office, has extensive experience in M&A transactions, domestic and overseas share offerings, and private equity investments. As a lead partner, Zhou has advised Alibaba on its IPO, acted as the underwriter’s counsel in COSCO’s A-share public offering, and acted as Carlyle’s counsel in its acquisition of a 20% stake in China Pacific Insurance Group, which is the largest private equity investment in China so far.

www.legalbusinessonline.com

Name: David Yu 俞卫锋 Title: Partner Firm/organisation: Llinks Location: Shanghai

Name: Celia Lam 林楚丽 Title: Partner Firm/organisation: Linklaters Location: Beijing

Why hot: Lam topped off a wonderful year by winning International Dealmaker of the Year at the recent ALB China Law Awards, cementing her reputation as one of the leading dealmakers in the equity arena. Over the course of 2007 Lam worked on a series of market-shaping deals including ICBC’s US$5.5bn acquisition of a strategic interest in South Africa’s Standard Bank and China Railway Group’s US$5.5bn IPO.

Why hot: Led by David Yu, Llinks’s M&A team has reported strong performance in the past 12 months with the completion of more than 30 deals. Deal highlights include advising Zim Israel Integrated Shipping Services on its US$2.7bn investment in China Railway United International Container, advising on Shanghai Automotive Industry Corporation (Group)’s acquisition of Nanjing Automobile (Group) Corporation, and acting for the target company in Warburg Pincus’ US$200m investment into Redstar Macalline.

Name: Liu Wei 刘巍 Title: Managing partner of the Beijing office Firm/Organisation: DLA Piper Location: Hong Kong/Beijing

Why hot: Less than two years after joining DLA Piper, Liu Wei has been elevated to managing partner of the firm’s Beijing office.

Liu, who obtained a PhD in law from the University of Cambridge, is also the joint head of DLA Piper’s Asia capital markets practice. He specialises in H-share and red-chip listings in Hong Kong and has advised on more than 100 IPOs and listings including the US$5.5bn listing of China Railway Group and China Merchants Bank’s recent acquisition of Wing Lung Bank.

Name: Yan Yu 颜羽 Title: Managing partner Firm/organisation: JiaYuan Location: Beijing

Why hot: Yan Yu enjoys a strong reputation for her work in capital markets. She excels in providing full services and support to large companies, especially large stateowned enterprises, in relation to their IPOs and financing. Most recently, Yan has been involved in the US$1.5bn “first A then H” listing of China South Locomotive, and the A-listings of China Railway Group and China Coal in Hong Kong and Shanghai.

31

THE STATESMEN

FEATURE | ALB China Hot 25 >>

Name: Liu Zhengdong 刘正东 Title: President Firm/organisation: Shanghai Bar Association Location: Shanghai

Name: Wang Zhongde 王忠德 Title: Managing partner Firm/organisation: Dacheng Location: Beijing

Why hot: Liu Zhengdong, the founding and managing partner of Shanghai firm Junyue, made the headlines when he took over the helm of the Shanghai Bar Association from Lv Hongbing, who stepped down at the end of his three-year term. The newly elected president of the association, the youngest of all presidents of local bar associations, will follow in the footsteps of his predecessor and take the legal profession from strength to strength, servicing Shanghai’s dynamic growth as an international business and financial hub.

Why hot: Under Wang Zhongde’s management, Dacheng has had another bumper year. The firm has opened five new offices across China in the past 12 months, doubled its revenues and attracted a large number of new lawyers and partners. With all of these achievements, Wang was awarded Managing Partner of the Year at the 2008 ALB China Law Awards. He speculates that his firm will continue its exponential growth in the years to come.

Name: Wang Ling 王玲 Title: Managing partner Firm/organisation: King & Wood Location: Beijing

Why hot: King & Wood has set itself an ambitious plan to make the country’s largest firm a dominant player in the high-end corporate, capital markets and cross-border transactions scene. The person who is tasked with this project is Wang Ling, the firm’s managing partner.

Under Wang’s management, the firm has expanded into emerging key markets in second-tier cities, including Tianjin, Suzhou and Qingdao, and ventured into Australia through establishing a strategic alliance with Sydney-based firm Gilbert + Tobin. King & Wood has also topped many league tables, such as Bloomberg’s 2007 Ranking of IPO issuers’ counsel on the Hong Kong Stock Exchange by volume.

32

Name: Charles Guan 管建军 Title: Managing partner Firm/organisation: Grandall Legal Group Location: Shanghai

Name: Zhu Linhai 朱林海 Title: Managing partner Firm/organisation: AllBright Location: Shanghai

Why hot: Charles Guan enjoyed an outstanding year in 2007. Deal highlights include advising Giant Interactive Group on its IPO, Cgen Media on its sale to Focus Media, Hoau Logistics (the largest road transportation group in China) on its sale to TNT Group, and Jiayu Logistics on its sale to YRC Worldwide. Guan was awarded Best Lawyer for M&A by Global M&A Research Center and the CMAA in 2007. At the ALB China Law Awards 2008, Grandall Legal Group (Shanghai) was awarded Shanghai Firm of the Year.

Why hot: After losing a few important members of the corporate group, AllBright Law Offices’ new managing partner, Zhu Linhai, has revamped the firm’s management structure and is leading Shanghai’s largest firm to new heights. AllBright’s revenues in 2007 increased significantly to US$32m, while the number of partners has grown from 41 to 62.

As part of its strategic growth plan, AllBright established the SinoGlobal Legal Alliance in September 2007 with international firm Lovells and eight leading domestic firms.

ISSUE 5.9

THE PIONEERS

FEATURE | ALB China Hot 25 >>

Name: Liu Chi 刘驰 Title: Senior counsel Firm/organisation: Jun He Location: Beijing

Why hot: Liu Chi, a pioneer in sports law and arbitration, has played an important part in ensuring disputes arising during the 2008 Beijing Olympic Games are resolved effectively and with fairness. Last November, he was appointed by the Court of Arbitration for Sport (CAS) as one of the 12 ad hoc arbitrators for the CAS ad hoc division for the 2008 Beijing Olympic Games. The division provides all participants in the Games with free access to justice, rendered within time limits that keep pace with the competition. www.legalbusinessonline.com

Name: Dong Zhengwei 董正伟 Title: Partner Firm/organisation: Zhongyin Location: Beijing

Name: Wang Lei 王磊 Title: Partner Firm/organisation: Gaopeng & Partners Location: Beijing

Why hot: Wang Lei, a former deputy chief of the WTO Desk in the Ministry of Foreign Trade and Economic Cooperation, who had engaged in negotiations for China’s WTO accession, is a veteran lawyer and expert on the WTO and in international trade remedy. In the past 12 months, Wang has regularly been invited by officials from other Asian countries, such as Laos and Vietnam, to advise on matters relating to the WTO.

Why hot: Dong Zhengwei is the first lawyer to put China’s newly enacted anti-trust law to the test and has become well-known domestically and globally. He has formally lodged a complaint with the regulators against Microsoft for breaching the anti-monopoly law and proposed a US$1bn fine against the global software giant. The regulators, including the Ministry of Commerce and National Development and Reform Commission, have officially notified Dong that investigations into the matter will be conducted.

Name: Su Xiaoxi 苏效玺 Title: General counsel Firm/organisation: Haier Group Location: Qingdao

Why hot: As Haier Group is among the pioneers in establishing global brands and global markets, so is the group’s general counsel, Su Xiaoxi, a pioneer in assisting the group in ventures at home and abroad. Under Su’s leadership, the in-house department has worked with a large number of international and national firms and continues to value the role external counsel can play. The group’s in-house team continually strives to broaden and deepen its expertise and improve internal standards of practice and management.

Name: Wang Jiabin 王加斌 Title: Partner Firm/organisation: Lifang & Partners Location: Beijing

Why hot: With an increasing number of Chinese companies being affected by the US ITC’s section 337 investigations, Wang Jiabin, dual qualified in the PRC and the US and specialising in IP law, TMT and ITC 337 investigations, has often been sought out by Chinese companies to resolve their IP and trade-related disputes overseas. A Lifang team led

by Wang is currently representing several Chinese clients in two patent infringement cases before the ITC.

33

THE MOVERS

FEATURE | ALB China Hot 25 >>

34

Name: Li Zhiqiang 李志强 Title: Partner Firm/organisation: Jinmao-Kaide Location: Shanghai

Name: John Chu 储贺军 Title: Partner Firm/organisation: Jun He Location: Beijing

Why hot: One of the five founding partners of Jun He, John Chu has decided to rejoin one of the country’s leading law firms 12 years after he left. Since leaving the firm in 1994, Chu has worked as inhouse counsel for Motorola, Nortel and General Motors. Most recently, he was a partner with Beijing firm Broad & Bright.

Name: Nick Seddon Title: Regional managing shareholder, Asia Firm/organisation: Heller Ehrman Location: Hong Kong

Name: Howard Zhang 张新华 Title: Partner Firm/organisation: Davis Polk Location: Beijing

Name: Liu Yi 刘屹 Title: Executive partner Firm/organisation: Run Ming Location: Beijing

Why hot: The former Asia head of DLA Piper has jumped ship to Heller Ehrman to succeed Jonathan Palmer as the regional managing shareholder. Seddon has been credited with the rapid regional expansion of DLA Piper, which demonstrated impressive revenue and headcount growth under his leadership as well as two new office openings. His track record of growing law firms positions Heller Ehrman for rapid expansion.

Why hot: Former managing partner of O’Melveny & Myers’ Beijing office, Howard Zhang has given up his management role to focus on fee-earning as a partner in Davis Polk & Wardwell’s Beijing office, which was opened last February.

Zhang is reputed for his expertise in venture capital and private equity transactions. In his new role at Davis Polk, he will advise clients on cross-border securities, M&A and strategic investment transactions.

Why hot: A team of former Junyi lawyers led by Liu Yi has joined forces with Run Bo Law Office, headed by Wang Yadong, to forge a new brand – Run Ming. The team has brought substantial expertise in aircraft finance/leasing, aerospace projects, banking and finance and foreign investment to the new firm.

Since it was established, the firm’s lawyer headcount has increased by 20% and revenue growth has been “very satisfactory”.

Why hot: 20-year-old Jinmao, which was one of the top three law firms in Shanghai, has split into two firms. Former managing partner Li Zhiqiang and eight other partners have splintered off to establish Jinmao-Kaide, while the remaining partners and lawyers continue to practise at Jinmao. The split-up case was high-profile in Shanghai’s legal community and was spurred by an acrimonious quarrel between senior partners.

ISSUE 5.9

SHINING LIGHTS

FEATURE | ALB China Hot 25 >>

www.legalbusinessonline.com

Name: Zhang Yuejiao 张月姣 Title: Senior counsel Firm/organisation: Jun He Location: Beijing

Why hot: Zhang Yuejiao is the first ever Chinese judge on the WTO’s highest judiciary body – the Appellate Body – which gives final rulings on trade disputes. Zhang was appointed by the WTO late last year and commenced her four-year term on 1 June 2008. Zhang has extensive experience in the areas of international trade, finance and investment. She once held senior positions at the Ministry of Commerce as well as at the Asian Development Bank.

Name: Tang Jinlong 唐金龙 Title: Chief partner Firm/organisation: Zhongyin Location: Beijing

Why hot: Riding the wave of a major overhaul of China’s laws relating to lawyers, Tang Jinlong, founding partner of Zhongyin, has announced a plan for converting the firm to special general partnership, a similar structure to limited liability partnership in the US, following a merger between Zhongyin and Zhengtai. Tang is the first managing partner to take the plunge to adopt the new structure, hoping to grow the size of the firm significantly and better manage risks associated with existing practices and further growth.

Name: Zhang Wei 张炜 Title: Head of legal Firm/organisation: Industrial and Commercial Bank of China Location: Beijing

Name: Pu Lingchen 蒲凌尘 Title: Partner Firm/organisation: Zhonglun Location: Beijing

Why hot: ICBC has had an outstanding year, and at the helm of its legal department is Zhang Wei. After making sure all things went smoothly for ICBC’s IPO in 2006 – the world’s largest global public offering ever, Zhang had another busy year assisting the bank in closing big-ticket M&A transactions. He has led his in-house team, working closely with board executives and external counsel, and ensured the resounding success of ICBC’s recent US$5.5bn investment in South Africa’s Standard Bank. He has also handled his organisation’s remittance freezing dispute with the US Office of Foreign Assets Control.

Why hot: With extensive experience in anti-dumping proceedings, Pu Lingchen has been in the spotlight recently.

He was invited by the Ministry of Commerce to give a lecture to a delegation of developing country officials in Beijing this June. At the lecture, Pu shared his knowledge and experiences with trade officials from countries including Thailand, Vietnam, Malaysia, Russia, South Africa and Brazil.

In 2007, Pu Lingchen provided supporting legal arguments on anti-dumping and countervailing as an expert consultant to the Ministry of Commerce in the WTO’s Doha Round negotiations.

Name: Lawrence Liu 刘宏强 Title: Chief representative Firm/organisation: ACC China Location: Beijing

Why hot: Liu has been appointed as the chief representative of the Association of Corporate Counsel (ACC) in China. He is responsible for building ACC’s membership in China and setting up a platform for Chinese corporate counsel to take their place in the international community. Liu and the ACC regularly host seminars and provide training to in-house lawyers. Liu also serves as general counsel of the China Electronic Systems Engineering Corporation, and has been named one of 25 outstanding in-house lawyers in Asia by ALB.

35

FEATURE | trademark >>

Trademark enforcement makes its mark ► RISING NUMBER OF REGISTERED TRADEMARKS AND INFRINGEMENTS • Figures from China’s State Administration for Industry & Commerce (SAIC) show that, by the end of 2005, the country had accumulated 2.37 million registered trademarks, among which 422,000 were registered by foreign enterprises from 129 countries. In 1993, the total number of registered trademarks was roughly 90,000 including 10,000 foreign trademarks from 20 countries.

• Li Dongsheng, deputy director of SAIC, said the Administrations for Industry & Commerce (AICs) at all levels across the country dealt with 193,332 trademark infringements, including 28,000 foreign-related cases, between 2001 and 2007.

Close to 800 suspects involved in 774 cases were transferred to the police for criminal investigations.

► INTELLECTUAL PROPERTY RIGHTS AND THE BEIJING OLYMPICS 2008 • According to statistics, AICs has dealt with 1,128 Olympic symbol-related infringement cases from 2004–06, in which the damages amount to RMB14.9m (US$2.18m) and fines totalled RMB8.38m (US$1.23m). Seven suspects involved in two cases were transferred to the judicial authorities for criminal liabilities. In 2006, AICs further intensified their campaigns to crack down on infringement of Olympic symbols. Altogether, 428 cases were dealt with, which is a 45% increase compared with that of 2005.

36

Intellectual property rights lawyers started embracing tougher enforcement of trademark law in the country’s lead up to host the Beijing Olympics. Lawyers told ALB China that tougher enforcement is one sure sign of the country’s commitment to keep its legal infrastructure up to pace with its economic development

L

ast month, law firm Allens Arthur Robinson dismantled an international operation that was illegally selling t-shirts bearing World Wide Fund for Nature’s (WWF) iconic panda trademark. The source was in China, distributing the goods on alibaba.com and being sold at Paddy’s Market in Sydney.

A few phone calls between Sydney and China later and the trademark infringer was located and legal letters were served, forcing an immediate shut-down. Allens’ intellectual property partner, Andrew Wiseman, contacted his Beijing counterparts – practice manager, Ted Marr, and lawyer, Jimmy Huang – and shut down the illegal operation. “Each new or repeat player who pops up selling pirated goods needs to be shut down.

The best, but often more difficult, task

is to locate the source and take action. It secures not just an Australian solution, but a global one,” says Wiseman.

The truth is that multinational companies are taking the lead in enforcement efforts against trademark infringements here. Budgets have been allocated to employ in-house lawyers and to commence investigative work.

In earlier days, self-help was often the most basic form of IP protection when government agencies were not so pro-active.

“We work with local companies, international companies and law firms to track down trademark infringers. It can be a very long process, Spring Chang, Chang Tsi & but we have to start Partners somewhere,” says Spring ISSUE 5.9

FEATURE | trademark >>

Chang, head of Chang Tsi & Partners’ intellectual property department.

A lot of the IP lawyers’ investigative and enforcement work is confidential for a reason – so they can stay ahead of the counterfeiters. Any anti-piracy work undertaken by IP enforcement lawyers almost always involves a web of private investigators and agents who try to work up the food chain to nab the big players.

“We have our local networks who collect information on where the counterfeiters operate. At the end of the day, we have James Luo, to evaluate if it’s worth our Bird & Bird while to conduct a raid.

The value must be at least double the lawyer fees,” says James Luo, director of Bird & Bird’s intellectual property group and head of the IP enforcement practice in Asia.

For example, firms like Motorola have more than 40 agencies, including law firms, to provide sightings of counterfeit handsets and mobile phone accessories

www.legalbusinessonline.com

around the country. A few years ago, a syndicate was uncovered and found with RMB7m worth of counterfeit goods in Guangzhou. Luo and his team pressed for criminal liability.

Luo is also Motorola’s senior IP counsel for North Asia and is in charge of IP enforcement and litigation in mainland China, Hong Kong, Macau, Taiwan, Japan, Korea and Vietnam. He led the 2006 lawsuit for Louis Vuitton, Prada, Chanel, Burberry and Gucci against the landlords of the Beijing Silk Market for allowing counterfeit items to be sold there.

Enforcement is the key Trademark infringers can expect more law firms to get in on the act as business owners find more support from the state government in cracking down on those who persist in breaking the law. “China is becoming more open and competitive as the economy grows. Thus, there’ll be an upward trend in trademark infringement cases at the same time. One way to curb

► IN THE COURTS: TRADEMARK INFRINGEMENT CASES • May 2008: Shampoo pirates: The Xihu District People’s Court in Nanchang, Jiangxi Province, jailed a man for selling counterfeit shampoo.

There were close to 2,000 cases of counterfeit trademark representations of Rejoice, Pantene, Olay, and Lux. They were distributed widely in Hongcheng Market, Nanchang. Xu Jin earned RMB152,941 (US$22,390) from the illegal sales. The unsold illegal goods were worth RMB248,826 (US$36,428).

• April 2008: Without permission from Lacoste SA, Shaoxing Shulan Knitting & Garments Co Ltd labelled its products with the trademark representation ‘LACOSTE & Device’. The Shaoxing Intermediate People’s Court in Zhejiang Province ruled that Shaoxing Shulan should immediately stop the infringement and compensate Lacoste SA with RMB200,000 (US$29,256).

• July 2007: The Shenzhen Ministry of Security worked with the US Federal Investigation Bureau to smash a major piracy ring which had manufactured fake Microsoft products.

this is through effective government legislation,” says Chang.

“I’ve witnessed protection of IP over the last 10 years and there’s certainly

37

FEATURE | trademark >>

been a shift from administrative enforcement to include criminal enforcement. For a long time, multinationals have been lobbying hard to protect their IP by pressing for criminal liability on infringers,” says Luo. Under the current law, Administrations for Industry & Commerce (AICs) have the authority to transfer cases to the courts for judicial criminal action. So, in addition to imposing fines and awarding damages to the rightful IP owner (based on the average price of the genuine goods), jail sentences of up to seven years can also be meted out to counterfeiters. This applies across the board – from local to foreign counterfeiters.

Last December, the Guangdong High People’s Court jailed Swedish mobile phone charger manufacturer Martin Marsousher Barzargan for 15 months and fined him RMB50,000 (US$7,143) for illegally using the registered trademarks of Motorola, Nokia, Sony Ericsson and Samsung.

“We’re seeing more help from the government and this is extremely important to the country’s economic development.

China isn’t a common law country so there are no case precedents to refer to, so companies have found it hard to achieve full IP protection” SUSAN MUNRO, O’MELVENY & MYERS IN SHANGHAI Morphing pirates Lovells’ head of IP in China, Douglas Clark, emphasises that “effective enforcement” is the key. “The biggest issue is stopping counterfeiting. Getting more criminal enforcement is hard – work is being done but it’s happening slowly. There’s also the issue of corruption and local protectionism,” says Clark. Local protectionism comes in the form of locals who are reluctant to report such activities because they are paid not

to do so. Sources close to ALB China said that this is especially so when the locals are employed by the counterfeiters.

“In the past, the police didn’t enforce IP protection because the work wasn’t identical to a typical criminal case.

These days, however, even the customs officials are getting in on the act.

This makes a big difference because counterfeiters work very quickly. They don’t keep sales records, and ship out the illegal goods very quickly from one

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ISSUE 5.9

FEATURE | trademark >>

place to another when they receive word that their operation has been uncovered,” says Luo. With the advent of cyber-squatting – when trademark pirates register trademarks in their internet domain names by either running a business from it or hoping a company buys it from them for a quick buck – new avenues for piracy are abound.

Chang Tsi & Partners recently handled a case in which the Formula One domain name was usurped by a local company.

Playing by global rules Given China’s huge role as ‘the workshop of the world’, and its geographical vastness, enforcing intellectual property rights can be difficult.

But IP protection became significantly important in the lead up to the Olympics this year in Beijing. Part of the country’s bid to host the Olympics was its undertaking to conform to international IP laws in protecting the

www.legalbusinessonline.com

usage and distribution of the Olympic symbol. Working from the ground up and by making these efforts apparent are also part of the government’s strategy to curb piracy. Court cases and convictions by the government are updated on ipr.gov.cn. Prior to 2006, no such updates were available.

China's Trademark Law was first enacted in 1982, and then amended in both 1993 and 2001 to meet the requirement of economic development and entry into WTO. The most recent draft amendment of the Trademark Law (Third Draft Amendment) was released for public comment in August 2007.

The third draft includes an amendment in which the maximum fines are increased. At present, infringers may be up for RMB100,000 (US$14,651) if the business value of the infringer cannot be determined.

The draft proposes a maximum fine of RMB1m (US$146,502).

Li Dongsheng, deputy director, the State Administration for Industry & Commerce ( SAIC), has stressed to

foreign media that the protection of the exclusive right to use registered trademarks is necessary to attract foreign investment, encourage innovation, to develop self-owned brands and to increase the competitive power of the domestic industry.

“We’re seeing more help from the government and this is extremely important to the country’s economic development. China isn’t a common law country so there are no case precedents to refer to, so companies have found it hard to achieve full IP protection. Having said that, the Beijing and Shanghai IP courts have strong jurisdictions and we’re beginning to see some high damages coming out of these courts,” says Susan Munro, counsel with O’Melveny & Myers in Shanghai.

While the country shapes up a golden shield for IP through legislation, lawyers are hopeful for additional ground enforcement to further armour their clients’ trademarks, patents and copyrights. It may take some time, but at least the process has already begun. ALB

39

FEATURE | environment >>

Green is gold A legal framework that is enlightened and geared to energy conservation and protecting the environment is producing more ‘green’ work for lawyers

D

uring the Beijing Olympics, tourists from around the world and local residents alike enjoyed the cleanest air in the city for a decade. Beijing’s enormous effort to reduce pollution, clear the skies overhead and make the roads less congested impressed everyone who was there during August.

“My clients from Hong Kong were really delighted to see blue skies over Beijing during the Olympics – and so was I,” says Wang Jihong, a senior partner in the Beijing-headquartered law firm V & T. “It was achieved as a result of the significant efforts and input by the Beijing government and the Beijing Olympics organiser in recent years,” she adds.

Wang’s firm also played a part in Beijing’s ‘Blue Sky’ project – the name used by officials to refer to the Olympics

40

clean-up plan – because it was appointed by the Beijing Environmental Protection Bureau in 2004 to provide legal services on a retainer basis.

The city implemented long-term regulations as well as strict temporary measures – such as closing polluting factories, reducing the number of cars on the road and suspending urban construction projects – to ensure the best possible environment for the Olympics and the Paralympics.

Wang and her team assisted the bureau by advising on most of the policies, regulations and measures drafted to improve Beijing’s environment in the years leading up to the Games, and then reviewing them. They also represented the bureau in any disputes arising from the clean-up process.

“The central government has had a strong focus on environment protection

for some years, but the Olympics was a milestone on the country’s path to pursuing sustainable, green development,” says Wang. “The Olympics have raised environmental awareness right across China and put the environment at the heart of the country’s future development.”

Hoping to keep the skies blue over Beijing even after the Olympics, the capital city is leading the whole nation in dealing with pollution. Du Shaozhong, deputy director of the Beijing Environmental Protection Bureau, said at a recent press conference that some of the temporary measures for reducing pollution would become permanent, and gave examples by stating that the bureau would continue removing the vehicles responsible for heavy pollution and modifying them, and also stepping up dust reduction on construction sites.

ISSUE 5.9

FEATURE | environment >>

Wang is also experienced in advising on large construction and infrastructure projects, and she expects the volume of work relating to environment issues in V & T to soar.

“It is a golden opportunity for the firm to consolidate its environmental law practices,” she says, “as the increasingly sophisticated legal framework of environment protection will certainly prompt companies to seek compliance and regulatory advice from external lawyers.”

Winds of change for environment protection The national environment protection campaign gained most momentum in 2008, not only because of the Olympics, but also due to its elevation from an administrative body, to the Ministry of Environmental Protection (MEP), and also the promulgation of a new Circular Economy Law. Passed at the end of August and coming into force on 1 January 2009, this law is set to promote sustainable development through energy-saving, recycling and the reduction of pollutant discharges.

“The new law provides a solid, integrated and practical legal framework governing environmental issues,” says Zhou Yacheng, partner in the Beijing firm, Huatang, “and the need for legal services will be created at every stage of the process when companies implement the law.”

Under the new legislation, they are required to increase their input in environment protection and, in order to be compliant with it, they need to adopt more energy-saving measures, acquire green technologies, update equipment and develop recycling systems, invest more in R&D and improve waste management.

“Implementing the new law may affect companies’ profitability temporarily and cause a reshuffle in certain industries,” says Zhou. “But the more committed a company is to environment protection, the better image it has in the market as being socially responsible, which is obviously more attractive to investors.”

The impact of this law is focused on companies in heavy industries that are high in energy consumption and pollutant emissions. Most of them are dominated by Statewww.legalbusinessonline.com

“The Olympics have raised environmental awareness right across China and put the environment at the heart of the country’s future development” WANG JIHONG, V & T owned enterprises, and many of these SOEs have already adopted strict measures to achieve the energysaving and pollution-reduction goals set by the government before the law was passed.

“Environment protection has been a main focus of the steel industry in recent years and our company has been implementing the strategy of clean production. The in-house legal department is playing an integral part in it,” says Sun Shuwei, the head of legal at Jinan Steel, a company widely recognised for its achievements in recycling, energyefficiency and pollution control. As in all other steel companies, a dedicated department was set up in Jinan Steel to handle environment protection and safety matters.

“The new law will spur companies in all sectors to take concrete action to save energy and protect the environment,” says Sun.

► ENERGY-SAVING REQUIREMENTS GET SERIOUS Last year, the National Development and Reform Commission (NDRC) launched a plan which required 998 large domestic enterprises in the petrochemical and iron and steel industries, and other sectors with high energy consumption, to meet global energy-saving requirements and save 100m tons of standard coal by 2010.

According to a recent report by the NDRC, 879 of them have achieved their energy-saving goals for 2007, whereas 74 enterprises, including subsidiaries of Sinopec Group, China Datang Corporation and China Huangneng Group, did not succeed.

Those who didn’t achieve their goals in 2007 will have to work out rectification measures within a month, and are also not elligible to enjoy national preferential policies or to be inspected in order to receive approval for new energy-saving investment projects or submit applications for new industrial land in 2008.

Source: www.ndrc.gov.cn

Many multinational companies in China, that fall into a range of sectors potentially affected by the new law, were also among the first to react to the legislative changes. International firms have started getting calls from clients enquiring about its implications.

“A number of clients who have heard about it are curious to know how the law will affect them,” says Beatrice Schaffrath, partner of Baker & McKenzie in Beijing and a member of the firm’s global environment and climate change practice groups.

“The law is important for providing a guide to some of the environmental and climate-change issues that the government has decided to focus on as the country develops industrially and economically, but the nitty-gritty details often lie in the implementation regulations which come some time after the law is introduced.”

According to Schaffrath, players across a wide range of market sectors are now increasingly aware of the potential impact of certain of their activities on the environment being a focus of their operations in China.

The environment exchanges While lawyers and clients are waiting for detailed implementation rules to be issued, another exciting development on the environmental front has caught their eye – the establishment of environment and energy exchanges in Beijing and Shanghai. Tianjin is also expected to set up an environment exchange in the near future.

“As these exchanges lay the foundation for companies to use market-based methods to solve the problems related to environmental protection, saving energy and reducing pollutant emissions, lawyers will have to be predominantly involved in these transactions,” says Liu Wei, Grandall’s executive partner in Shanghai.

41

FEATURE | environment >>

“The new Circular Economy Law will spur companies in all sectors to take concrete action to save energy and protect the environment” SUN SHUWEI, JINAN STEEL Liu and his team have participated in a number of pioneer projects in environmental areas, including the world’s largest CDM project agreement between Shandong Dongyue and Nippon Steel and Mitsubishi. Now, Liu is actively assisting the Shanghai Environment Exchange in establishing the operational infrastructures and procedures for companies to exchange environment-related technologies and trade emission reductions, such as SO2, COD and Nox discharge rights.

Yet, again, not much detail has been released regarding how the two exchanges will operate, how they will interact with international markets and whether foreign investors can participate. It is also unclear what type of advice these procedures and operational issues will require in

relation to this development. However, any project like this which implicates regulatory and legal issues that are going to affect clients will drive up the need for legal advice on them.

“It seems many of our practice’s areas of expertise will be involved in our clients’ expectations on these exchanges. Based on the available information, there would be a number of issues coming into play from the legal perspective, so we would anticipate to see work in this regard,” says Schaffrath, giving two examples: the exchanges are to involve technology issues, which requires the firm’s IP practice expertise, and financing and equity issues, which will require its expertise in areas of capital markets, project financing and bank loans.

“The establishment of the exchanges is a reflection of the market’s recognition of the regulatory importance the government has placed on improving the country’s environmental situation,” says Schaffrath. “It’s also recognition that sometimes commercial incentives can help achieve environmental objectives.”

While still in its infancy, the new ‘clutch’ of exchanges indicates that the government has decided to explore various avenues to encourage environmentally focused behaviour in the market.

Foreign investment turns ‘green’ The increased environmental consciousness in China has raised the bar for future foreign investment and caused some concerns over a possible slow-down in foreign investment projects and activity. However, lawyers say that while foreign investment will be restricted in certain areas, such as the low-end manufacturing sector, other areas of the economy will provide new opportunities for foreign investors, including energy-saving and green technologies.

“In certain energy and resources fields, especially industries in which pollution levels are traditionally high, foreign investment that can bring capital, new technology and management approach to help Chinese companies improve their environmental performance will be promoted and welcomed,” says Wang Jihong of V & T. Wang and her firm are currently working on several projects involving foreign funds investing in large Chinese industrial groups.

Similar types of transactions are also taking up a significant percentage of the billable hours of environmental law practice groups in international firms.

“On top of providing more compliance services, we are acting on an increasing number of investments ► QUICK FACTS ABOUT THE ENVIRONMENT EXCHANGES IN BEIJING AND SHANGHAI The Shanghai Exchange, owned by Shanghai United Assets and Equity Exchange (SUAEE), will • collect, filter and publicise information for the environment and energy-related equity and emission credit trading • provide a platform for carbon emission credit trading deals between companies or institutions and • provide equity owners, energy reservation integrators, research companies and investment institutions with consultancy, project design and evaluation, fund operation and technical support The Beijing Exchange, operated by an entity called China Beijing Environment Exchange, will • promote the exchange of technologies for environmental protection, energy conservation and pollution emission reduction • provide a platform for trade in SO2 and COD discharge rights, and • act as an information service for the reduction of greenhouse-gas emissions Source: China Daily

42

ISSUE 5.9

FEATURE | environment >>

by overseas funds in renewable energy and energy-efficiency projects in China,” says Campbell Davidson, partner in Allens Arthur Robinson in Shanghai. Although the fi rm’s headquarters are in Sydney, most of the China climate-change practice group’s clients are from Europe.

However, as Australia has ratified the Kyoto Protocol, Davison expects an increase in mandates from the fi rm’s home jurisdictions.

“An important driver for these investments is the tax incentives provided by the government to promote green energy technologies and environmentally friendly projects,” says Davidson. “Some law and regulations passed in recent times encourage investors to enter the renewable energy industry, and established companies are also adjusting their business to benefit from preferential treatments.”

With the legal framework concerning environmental issues improving and strengthening, environmental lawyers will work more closely with

www.legalbusinessonline.com

“The establishment of the environment exchanges is a reflection of the market’s recognition of the regulatory importance the government has placed on improving the country’s environmental situation. It’s also recognition that sometimes commercial incentives can help to achieve environmental objectives” BEATRICE SCHAFFRATH, BAKER & MCKENZIE other practice groups to provide good guidelines for clients, as they take environmental issues increasingly into account when they evaluate risks for a project.

“A decade ago, the enforcement risk of the authorities in relation to whether a project had the proper environmental discharge permit or not, often was a take-it-or-leave-it proposition and depended on the invetor’s comfort level with that risk.

And many foreign investors, in the

past, undervalued the impact of the lack of the proper environmental documentation in a project.” says Schaffrath. “But now, there is a much more heightened awareness that this is an area that should no longer be so low on the risk calculus list.”

Putting law and regulations in place is a good start, but sufficient enforcement and implementation of them are certainly the key to a buoyant legal services market in environmental law. ALB

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FEATURE | records management >>

Good record-keeping: good business The trend towards managing records off-site is growing, with law firms paying increasing attention to risk management. ALB China reports

A

s firms expand their presence nationally and globally to serve fast-growing client lists, employing ever more lawyers and staff and receiving an increasing number of mandates, efficient information retention subsequently becomes a major issue. It also includes indexing and data tracking, while ensuring client standards of confidentiality are met and the firms themselves keep current with conflictof-interest procedures.

Document management systems can help make the often onerous task of data retention easier through a diverse range of products and services. Whether it be making electronic versions of hardcopy files or devising a work-flow method, a secure document management system can ensure a firm is not in the headlines for the wrong reasons.

In terms of retention, firms can store items physically or electronically.

Furthermore, they can locate these documents and files securely either internally or remotely.

Some organisations choose either one solution or the other while others use both solutions for the many and varying departmental and workflow requirements.

The hows and whys of the system depend on the scale of the firm, while the geographic position of offices and the quantity of information that needs to be gained and created determines which is the best solution for each individual company.

The understanding of good record keeping is closely related to the topic of risk management. Minimising the risks associated with heavy flows of data is a necessary requirement of day-to-day

44

procedure. In the end, it all boils down to having the architecture in place to cover your daily processes, as well as a back-up to avoid any ‘worst-case scenarios’.

“Like any other business, law firms must – without exception – protect, secure and maintain their information and data. They are affected by the same laws by which they practise,” says John List, general manager of GRM China Records Centres. “And documents, files, evidence and clients’ statements must be maintained for a certain time – and also made available and accessible. If an item is called for in the court, it must appear and it is the law firm’s responsibility to make sure that happens.”

For information management to be effective, however, it has to work from the top down. You can have all the software available in place, but without a coherent data management process it simply goes to waste.

“The most challenging thing for local law firms in managing their information and documents efficiently is that different partners have different approaches to handling records and there is a lack of a centralised, established system,” says Stephen Gao, the China manager of Santa Fe Records Management Services in Shanghai.

Gao also points out that the high rate of staff turnover local firms often have could make records management and business continuity more difficult.

The benefits of working with professional records managers Virtual worlds are emerging fast on the business landscape with law firms increasingly retaining records as e-mails, word-processing documents, ISSUE 5.9

FEATURE | records management >>

spreadsheets, digital images and documents in all types of multimedia formats. Retrieval has now shifted from physical files to computers and firms have to realise that electronic records need the same level of care as actual ones, because the format is not the issue – it is the content that needs to be managed.

Some examples in the UK and the US have proved that if firms don’t take archiving and retrieval of all documents extremely seriously, the consequences can be catastrophic.

While many still interpret document management as ‘opening the mail’ and ‘filing’, there has been a definite shift towards businesses now realising the need to ensure effective records management is in place, but it needs to go a step further so that professional records managers are engaged to undertake the role.

Gone are the days when the benefit a ‘records management’ company offered a law firm – a business entirely paperdriven – was simply the facility to store its boxes remotely less expensively than it was to have them on-site in costly prime real estate. Now, however, the benefits far exceed storage prices.

“Record management companies today have the personnel with the expertise to complete special projects and handle records quickly and efficiently – both the manpower and the skills that law firms simply don’t have on hand,” says List. “Due to the expertise of these record centres and the expeditious way a project and program can be completed, savings in time and money are two of the immediate benefits.”

No matter whether a firm has locations around the globe, across the nation or simply one office on

Main Street, outsourcing record management off-site allows it to allocate its resources to revenuegenerating activities and leave the tasks of document storage that take up time and space to the ‘documentstorage experts’.

In addition, records management companies can ensure data security and protection, which are critical issues for law firms. If a single piece of data – or even one tape – was lost, it could be disastrous and cost a firm millions of dollars. Professional recordmanagement service providers are in the business of protecting virtual data with as much care and expertise as a physical record through advanced technologies and IT systems.

“Storing data off-site and having it delivered on what is known as a rotation schedule is an important component in many law firms’ contingency plans,” List says.

“Off-site data protection centres also provide optimal climatic conditions and fire-suppression systems for the proper protection and preservation of magnetic media.”

In the relatively young legal profession in China, the current market for contracting records-management services is still small, but this is changing rapidly and will undoubtedly continue to do so.

“Law firms in China are increasingly handling large-scale corporate issues, like M&A transactions and IPOs. As the size of firms, their business and client base expand, they will inevitably have to archive a significant volume of documents and data, and – of course – retrieve it. So the need to outsource their records-management work will grow alongside,” says Gao. ALB

“The most challenging thing for local law firms in managing their information and documents efficiently is that different partners have different approaches to handling records and there is a lack of a centralised, established system” STEPHEN GAO, SANTA FE RECORDS MANAGEMENT SERVICES, SHANGHAI www.legalbusinessonline.com

► RECORD MANAGEMENT IN A VIRTUAL WORLD It was said 15 years ago that paper would disappear. Today, however, paper inventories continue to grow at a rate of 20% per year.

There are newer technologies such as electronic vaulting which back up data to secure data centers electronically. Imaging is growing too but not at the rate that many predicted – what has grown is the accessibility and strategic use of the technology.

When it was introduced, people started microfilming and then imaging everything, thinking they could destroy all the paper, but this did not happen. They kept the images and stored the paper.

Today’s trend is to image an item when it is retrieved from storage rather than when it is first stored, and the benefit is accessibility. The internet has also provided law firms and other clients with the facility of a ‘virtual record center’, whereby they can view their inventory, complete data entry, update destruction/retention schedules, run sophisticated reports – such as what is out and to whom – and so on, without leaving their desks. The internet has made a record center a true extension of the Firm.

John List, GRM China

► DIGITAL IMAGING FOR BETTER BUSINESS EFFICIENCY To plan for business continuity, a firm must know that potential impact on it may not necessarily be caused by a natural disaster or an island-wide emergency.

If firms manage records in digital form, it means that they are not entirely reliant on paper files for information. Should a disaster strike or an emergency occur, these alternative sources of data should allow work to continue easily, regardless of staff or office location.

As an ongoing business process, converting paper records into digital images has the following benefits: • it eliminates the risk of misplacing paper files during multiple physical handling • it enables multiple access regardless of the storage silo, so that the original paper records need not ‘float’ in the office unnecessarily • it controls borderless access, so authorised staff can access the relevant information anywhere, any time • it affords retrieval that is instant – or, at least, quick – and, as online search for a document can be synchronised with the indexing criteria (predetermined during the scanning process) • it can provide an audit trail in retrieval, depending on the sophistication of the imagestorage database, so you can know who has accessed what information for what purpose Allen & Overy in the UK proved its in-house imaging solution works when the Iron Mountain warehouse in London went up in flames in 2006 and most of the paper records were lost.

Shao May Peh, Crown Records Management

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Asian Legal Business ISSUE 8.6

Sign off >> F

igures from Thomson Financial have shed some light on recent IPO activity.

The table below reveals the extent to which China dominated the Asia-Pacific IPO charts. The country was responsible for US$21bn in deals, with its closest rival, India, at US$4.5bn.

► TOP CHINA A-SHARE IPOs ON RECORD Issue date

Issuer

Proceeds (US$m)

29/10/2007

PetroChina Co Ltd

8,933.5

Legal entrepreneur launches virtual vision

26/09/2007

China Shenhua Energy Co Ltd

8,871.1

11/09/2007

China Construction Bank Corp

7,726.3

S

20/10/2006

ICBC

5,908.3

13/02/2007

Ping An Ins(Grp)Co of China

5,018.1

17/12/2007

China Pacific Ins(Grp)Co Ltd

4,070.8

19/12/2006

China Life Insurance Co Ltd

3,626.0

ilicon Valley lawyer-entrepreneur Craig Johnson recently launched a virtual law firm with 14 other lawyers.

Johnson hopes the firm – titled Virtual Law Partners – will forge a new model for the legal industry and encourage work-life balance while working from home.

The new system is also geared to save on overheads so that clients are charged less, and attorneys are said to get 85% of what they bill.

VLP lawyers can also set their own rates; however, the average billing rate is estimated to be around $400 an hour.

28/01/2008

China Coal Energy Co Ltd

3,559.1

26/04/2007

BoCOMM

3,266.2

26/02/2008

China Railway Constr Corp

3,113.3

Aspiring partner sues over broken promise

CC says no to chow on company credit

A

O

former Orrick Herrington & Sutcliffe associate is suing his former firm over an alleged broken agreement to make him a partner.

According to Patrick Hoeffner, the firm had promised to bring him into the partnership to prevent him leaving and taking a client with him.

During this time Hoeffner claims he turned down several offers, and was hoping to receive US$100m (£51m) in damages based on lost future earnings and other alleged economic losses as a result of his failure to become an Orrick partner.

A New York State judge has since rejected this claim and ruled that Hoeffner may only seek nominal damages – which can be as low as $1. However, a jury could still conceivably award Hoeffner punitive damages.

nce again, Clifford Chance is tightening its wallet, and this time it’s hitting employees where it hurts – in the stomach.

According to the cost-cutting conglomerate, leisurely lunches, breakfasts and after-hour snacks will no longer be coming out of the company pocket, so associates will have to cater for themselves.

Following the recent taxi saga, CC has now slashed its dinner subsidies as well as cab charges, amidst a background of soaring food prices – the beloved staff deli has been shut for breakfast and afternoon tea and turned selfservice, and associates working double-time on weekends will now be forced to search for foodstuffs in the Canary Wharf shopping malls.

Singaporean firm with all the trimmings R

ajah & Tann employees have got it good. The Singaporean firm recently introduced some fresh new incentives for staff – and the extras are sure to go a long way when it comes to employee retention rates.

• One-month paid sabbatical: Deserving senior legal associates who have stayed true to the firm for four years or more will be entitled to a one-off offer of a breezy month of paid leave to do, well… whatever they want really. The activity is not specified, so they will be able to use the paid leave to go on their honeymoon, help look after the baby or just relax.

• Chill-out lounge: Employees at this forward-thinking 48

firm are also blessed with a 17th floor lounge, complete with game consoles like the Nintendo Wii and Microsoft Xbox, as well as a pool table. Making sure to cover all bases, the firm also provides a free breakfast daily, as well as lunch once a week, and a free flow of Ben and Jerry’s ice cream for its 600-plus employees. Not bad.

* ALB staff are currently lobbying to have the same incentives applied in their offices around Asia.

Asian Legal Business ISSUE 8.6