ISSUE 6.1
Outbound M&A: from crisis comes opportunity 海外并购：律所从危难中寻找机遇
ALB China Watchlist: 10 firms to keep your eye on this year 新起之秀：十家值得关注的律师事务所
International firms: commitment to China amid downturn 国际律所：尽管经济增长放缓中国市场仍被看好
CHINA
Exclusive! ICBC head of legal, Zhang Wei One of China’s biggest legal buyers on firms, fees and facing the challenge
PLUS:
独家专访：
2009 Chinese New Year Messages
中国工行银行总行法务部总经理张炜
业界人士为读者送去新春祝福
n DEALS ROUNDUP n LATERAL MOVES n IN-HOUSE VIEW n Regulatory UPDATES n UK, US REPORTS
www.legalbusinessonline.com
www.albawards.com
24 April 2009 The Westin Bund Center Shanghai The 6th annual ALB China Law Awards will be held on 24th April 2009 in Shanghai. This extravagant, black-tie gala event is the most highly regarded platform for recognizing success and achievement in the legal industry. The awards will deliver the most comprehensive view of players in Chinese legal services. And submissions for Deal of the Year, Firm of the Year and inhouse legal categories are now open. For more information about how to join in celebrating the excellence of Chin’s lawyers and the chance to be a part of the very best the legal industry has to offer please contact: For sponsorship opportunities: Amanda Ho on +852 3520 1359 email: amanda@kmimail.com For general inquiries: Dara Yam on +852 3527 3275 email: dara@kmimail.com For submissions: Iris Ma on +852 2815 5988 email: iris@kmimail.com
www.albawards.com
Awards Sponsor
Official publication Another event organized by
ALB ASIAN LEGAL BUSINESS
ALB enjoys alliances with the following organisations Indian Corporate Counsel Association
Shanghai Inhouse Counsel Forum
Country editors The Country Updates section of ALB China is sponsored by the following firms: China
CHINA
Paul, Weiss, Rifkind, Wharton & Garrison LLP is a globally oriented, full-service law firm with over 500 lawyers worldwide. Paul, Weiss is headquartered in New York and has offices in Hong Kong, Beijing, London, Tokyo and Washington D.C. Singapore
Loo & Partners was founded in 1985 as a niche practice, handling mainly banking, corporate, securities and commercial work. With the support of a comprehensive network of correspondent law firms, the firm serves its clients in their regional needs. The firm has been regularly noted for its IPO, M&A and general corporate work.
www.legalbusinessonline.com Copyright Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as ALB China can accept no responsibility for loss.
Regional managing editor
George Walmsley
China editor Zhang Yun
Editorial assistant
China regional editors
Zhang Liying
The Regional Updates section of ALB China is sponsored by the following firms:
Contributing editors
Shanghai
Llinks Law Offices is a leading PRC firm specialising in banking, corporate, and capital markets. Llinks provides local expertise and international service, helping clients achieve their business objectives in China and abroad.
Renu Prasad Joshua Scott
Production editor Daniela Aroche
Editorial researchers
Richard Szabo Rashida Yusofzai
Practice area editors The Regulatory Updates section of ALB China is sponsored by the following firms:
Sub-editors
Arbitration
SIAC is an independent, not-for-profit organisation, providing the international business community with a neutral, efficient and reliable dispute resolution institution in Asia. Most of the parties involved are non-Singapore parties; panel arbitrators are from all over the world; various contracts opt for non-Singapore law as the substantive laws; secretariats are multinational and multi-bilingual; and the arbitral awards are enforceable in over 140 signatory countries to New York Convention. International tax
AzureTax Ltd provides transparent strategic and ethical tax advice. Through our professional corporate and trustee services your tax plan is comprehensively implemented. Our tax advice provides independent innovative and rigorous solutions which deliver results and long-term accountability. Qualified UK, Hong Kong and PRC tax advisors. Insurance
Grandall Legal Group is proud to be one of the largest and most respected law firms in China. Utilizing its diverse resources from 500 legal professionals, it has over a decade of experience. Headquartered by the Beijing Office, Grandall has eight offices both on the mainland and in Hong Kong.
Diana Harris Carolin Wun Merran Magill
Designers
Weiyah Chiang Raymond Ohanesian
Design manager Jacqui Alexander
Photographers
Thilo Pulch, Ji Junfeng, Xing Qunkai
Business development manager
Yvonne Cheung
Traffic managers
Gloria Ng (Hong Kong) Patsy Ang (Singapore) Stacey Rudd (Australia)
Asia-Pacific managing director
Richard Curzon
Managing director Agnes Eng
Editorial enquiries Zhang Yun T (61) 2 8437 4702; F (61) 2 9439 4599 yun.zhang@keymedia.com.au
Advertising enquiries China & Hong Kong
Yvonne Cheung T (852) 3520 1361; F (852) 2815 5225 yvonne@kmimail.com
Singapore
Vivian Cheah T (65) 6423 4631; F (65) 6423 4632 vivian.cheah@keymedia.com.sg
Australia
Benn Sykes T (61) 2 8437 4745; F (61) 2 9439 4599 benn.sykes@keymedia.com.au
Event enquiries Hong Kong
Amanda Ho T (852) 3520 1359 ; F (852) 2815 5225 amanda@kmimail.com
ALB China enjoys alliances with the following organisations
Joel Ulbricht T (852) 2850 4496; F (852) 2815 5225 joel@kmimail.com
ALB is a sponsor of the International Bar Association Annual Conference Madrid 2009
ALB China is available by subscription. Please call (852) 2815 5988 for details or visit www.legalbusinessonline.com
www.ibanet.org
Key Media International Ltd
Inter-Pacific Bar Association Corporate Counsel Forum
Hong Kong
Unit 2706 – 08, 27/F, 118 Connaught Road West, Hong Kong T (852) 2815 5988; F (852) 2815 5225
www.ipba.org
Singapore
121, Telok Ayer Street #02-01, Singapore 068590 T (65) 6423 4631; F (65) 6423 4632 Indian Corporate Counsel Association
www.asianlegalonline.com/icca
Corporate Lawyers Association of New Zealand www.clanz.org
Sydney
ALB is the Asia-Pacific Legal Media Partner of the IPBA Annual Conference Manila 2009
Level 10, 1 Chandos Street, St Leonards NSW 2065 T (61) 2 9439 4566; F (61) 2 9439 4599
Editorial >>
Uncertainty cuts both ways
I
t’s that time of the year again, when we reflect on the past year and plan for the one ahead. For the most part, 2008 will be remembered as the year of unexpected events. Those familiar with the ways of the legal industry would have seen the warning signs coming more than a year ago. “What credit crunch?” asked firms innocently as the M&A wheels began to wobble. Next came talk about the strength of the diversified legal practice and how insolvency and restructuring work would save the day. But ever since then, a roll-call of bad news: major corporate collapses accompanied by the closure of 118-yearold firm Heller Ehrman. After a period of denial came an acceptance that tougher times were here. Firms such as Clifford Chance announced multiple lay-offs, while others such as DLA Piper turned to partner contributions as a way of minimising bank debt. While our economy is not decoupled from the global recession, domestic law firms haven’t been affected to the same degree as their international counterparts. But a drop in demand for legal services in cross-border transactions and slower revenue growth are inevitable for most local players. It’s time for a little perspective. The latest forecasts are predicting 5.5% growth for our country, down from earlier predictions of 7.5%. Such a dip, if it does materialise, is certainly not a trivial matter. It is well documented that even a small decline in growth will have a far-reaching impact on unemployment. Yes, we may be heading for hard times. But when we consider other jurisdictions are already in recession or on the brink of it, 5.5% does not look so bad. Let us also not forget that predictions are just that and some of the best economic commentators have been confounded by the events of 2008. As we all anxiously scan the markets, trying to find a clue as to where we are headed, uncertainty becomes the theme of the day. It has been an especially challenging task for our panel of leading lawyers to provide outlooks for the ALB China 2009 Predictions (see page 34). For each practice, there may be unpleasant surprises ahead, but there may be pleasant ones, too. The global financial crisis is likely to continue to weigh on the legal market for the most part of 2009, but we all know that opportunity can come from crisis. As we celebrate the start of the Year of the Ox, ALB China would like to wish all our readers a happy, successful and prosperous year ahead. Thank you for your continued support.
“What credit crunch?” asked firms innocently as the M&A wheels began to wobble. Next came talk about the strength of the diversified legal practice and how insolvency and restructuring work would save the day
2
IN THE FIRST PERSON
“Legal departments undeniably play an important role in helping keep banks afloat amid a crisis” Zhang Wei, general manager, legal department, Industrial and Commercial Bank of China, on the demise of Lehman’s (p32)
“In such dynamic times, it’s impossible to predict precisely what the year will hold” Peter Charlton, Asia managing partner, Clifford Chance, on strengthening the firm against market conditions (p14)
“The capital market reforms are a paradigmatic change in the way of thinking in Korea” Wonhyo Han, partner at Lee & Ko, on the new outlook that the FISCMA legislation brings (p52)
CHINA
ISSUE 6.1
CONTENTS >>
contents
ALB China issue 6.1 10
50
COVER STORY 34 2009 Predictions Ten of the country’s leading lawyers have come together to help ALB China predict trends in different practice areas and provide a map of the opportunities and challenges ahead
ANALYSIS 10 Outbound M&A: From crisis comes opportunity The current economic climate spells opportunities for domestic acquirers, but lawyers tell ALB China that there are also some pitfalls to watch out for 13 International firms: commitment to China amid downturn International players in the region are facing hardships due to the global financial crisis, but many say that the fundamentals of the market remain strong
FEATURES 30 In-house interview Zhang Wei, general manager of the legal department of the Industrial and Commercial Bank of China, discusses the evolving role of in-house counsel in a globally expanding Chinese company such as his own 42 ALB China Watchlist ALB China puts the spotlight on the 10 firms that you need to keep your eyes on in 2009
46 Chinese New Year Messages Season’s greetings for the Year of the Ox from law firms, in-house legal departments, service providers and educators
30 17 UK report 19 US report 27 M&A deals update
50 ALB Special Report: Korea 09 In the midst of undeniably gloomy economic indicators, lawyers in Korea have plenty of cause for optimism. Business opportunities arising from this side of the Yellow Sea are key
COMMENTARY
REGULARS
21 Insurance Grandall
6 • • • • • • • • •
NEWS Shanghai bar launches new international initiative Grandall opens Ningbo office Herbert Smith adds two Asia management roles New merger guidelines bring more work to law firms M&A financing carves out new turf for lawyers Legal education turns a new page Allen & Overy restructures Hong Kong office Grandfield bolsters IP practice Run Ming hires corporate lawyers from international firms
56 Sign off
20 Shanghai Llinks Law Offices
22 International tax Azure Tax 23 Singapore Loos & Partners 24 Regulatory Paul, Weiss 25 Arbitration SIAC
PROFILES 15 Lifang & Partners 29 Blancpain
ALB ASIAN LEGAL BUSINESS
4
ISSUE 6.1
NEWS | deals >>
Company, is expected to commence by Q3 because it does not yet have a business permit from Beijing
deals in brief
• The approval came one week after the joint venture between Credit Suisse and Founder Securities was permitted to offer investment banking services in the domestic Chinese market • The moves suggest that Beijing may be more open to allowing international practices to influence its domestic markets
| CHINA/HONG KONG/US | ►► Datang Telecom Technology/SMIC 3G Investment US$171.8m Firm: DLA Piper Lead lawyers: Liu Wei, Steven Liu, Eugene Choi Client: Datang Telecom Technology
| CHINA | ►► Shanghai Electric A-share debut
Christophe Han, Llinks
Firm: Zhong Lun Lead lawyers: Gu Feng, Liu Junzhe, Huang Zhiguo Client: Shanghai Power Transmission & Distribution
• Hong Kong-listed Shanghai Electric Group launched its IPO in the A-share market through merger by absorption with A-share listed Shanghai Power • Each Shanghai Power share has been swapped for 7.32 new Shanghai Electric Group shares • Shanghai Power was then deregistered and delisted from the A-share market and Shanghai Electric, as the parent company which owns 83.752% of Shanghai Power, has officially returned to the A-share from the H-share market through issuing 616 million A-shares
6
►► Credit Suisse – Founder Securities JV Firm: Herbert Smith Lead lawyers: John Moore, Simon Meng Client: Credit Suisse
US$430m Firm: Llinks Lead lawyers: Christophe Han, James Weng, Wayne Chen Client: Shanghai Electric
| CHINA/HONG KONG |
• Credit Suisse and Founder Simon Meng, Herbert Smith Securities has received the business permit from the China Securities Regulatory Commission (CSRC) to form a joint venture John Moore, providing Herbert Smith investment banking services in mainland China • The JV, Credit Suisse Founder Securities Limited, is 33.3% owned by Credit Suisse, with the remainder held by its partner Founder Securities • This was the first approval granted by the CSRC since the new regulations relating to the establishment of Sino-foreign securities companies were announced in December 2007
• Kai Nargolwala, Credit Suisse CEO in Asia-Pacific, said: “China’s domestic investment banking services market has long been a coveted crown jewel for many global banks looking to expand their footprint and reach growing emerging markets. The investment case for China hasn’t changed for us despite current market sentiment”
| CHINA | ►► Deutsche Bank – Shanxi Securities JV Firm: Freshfields Lead lawyer: Melissa Thomas Client: Deutsche Bank Firm: Lei Jie Lead lawyer: He Jie Client: Shanxi Securities • Deutsche Bank and Shanxi Securities announced they received approval to form a securities joint venture
Firm: Guantao Lead lawyers: Cui Liguo, Yan Pengpeng Client: Datang Telecom Technology Firm: Slaughter and May Lead lawyers: Benita Yu, Carol Wong, Maggie Kwok Client: SMIC
Liu Wei, DLA Piper
Benita Yu, Slaughter and May
Firm: Wilson Sonsini Goodrich & Rosati Lead lawyers: Michelle Edwards, Eva Wang Client: SMIC
Melissa Thomas, Freshfields
He Jie, Lei Jie
• The JV, Zhong De Securities ISSUE 6.1
NEWS | deals >>
• Datang Telecom Technology has invested US$171.8m in Semiconductor Manufacturing International Corporation (SMIC) in return for a 16.6% interest. Upon closing, Datang will be the largest shareholder of the company
►► YOUR MONTH AT A GLANCE Firm
Jurisdiction
Deal name
Value (US$m)
Deal type
Bugge, Arentz-Hansen & Rasmussen
China/Hong Kong/Norway
COSL Norwegian AS acquisition financing
1,500
Finance
Chengyi
China
MIH China – ADPG print media joint venture
undisc
JV
Clifford Chance
China/Hong Kong/Norway
COSL Norwegian AS acquisition financing
1,500
Finance
• DLA Piper and Guantao represent Datang as the foreign legal consultant and domestic legal consultant respectively
Deacons
China/Japan
Macnica – Cytech Technology acquisition
55
DLA Piper
China/Hong Kong/US
Datang Telecom Technology – SMIC 3G Investment
China/Hong Kong
• Slaughter and May, Wilson Sonsini Goodrich & Rosati represent SMIC regarding Hong Kong law and US law respectively
Dorsey & Whitney
China/Hong Kong
Guantao
China/Hong Kong/US
Datang Telecom Technology – SMIC 3G Investment
171.8
Finance
China
Beijing Financial Street Construction – Hengtai Securities Acquisition
204.6
M&A
Freshfields
China
Deutsche Bank – Shanxi Securities joint venture
–
JV
Gide Loyrette Nouel
China
Nanjing – Veolia joint venture
–
JV
China
Citélum Group PPP
–
Infrastructure
China/Hong Kong
Credit Suisse – Founder Securities joint venture
–
JV
China/Hong Kong/Cayman Islands
UTFE – GST takeover bid
China/Japan
Macnica – Cytech Technology acquisition
China/Hong Kong
China Overseas IPO
China/Hong Kong/Norway
COSL Norwegian AS acquisition financing
China/Hong Kong
Strong Petrochemical IPO
Lei Jie
China
Deutsche Bank – Shanxi Securities joint venture
Linklaters
China/Hong Kong
Hempel – Hoi Hung acquisition
145
Finance
Llinks
China
Shanghai Electric A-share debut
430
Equity
Mayer Brown
China/Hong Kong
Hempel – Hoi Hung acquisition
145
Finance
O’Melveny & Myers
China/Hong Kong/Cayman Islands
UTFE – GST takeover bid
247
M&A
• The investment involves US, Hong Kong and mainland China law. The share purchase agreement is governed by Hong Kong law • Through this transaction, a Chinese central enterprise has made a strategic investment in a company listed on both the HKSE and NYSE
Herbert Smith
JSM
| CHINA | ►► Beijing Financial Street Construction – Hengtai Securities Acquisition US$204.6m Firm: Guantao Lead lawyers: Cui Liguo, Nie Rui Client: Beijing Financial Street Construction Firm: Tianyin Cui Liguo, Guantao Lead lawyer: Liu Wenyan Client: Hengtai Securities • Beijing Financial Street Construction Group, as a principal investor, cooperated with several other investors to invest RMB1.4bn in Hengtai in return for an (approximately) 40% equity interest • The transaction illustrates an emerging trend where domestic securities companies actively seek investment from prominent stateowned companies by increasing capital and issuing new shares • The transaction increased Hengtai’s registered capital from RMB1.15bn to RMB2.01bn, and it may significantly improve Hengtai’s competitiveness and risk prevention ability in securities market
www.legalbusinessonline.com
King & Wood
M&A
171.8
Finance
Strong Petrochemical IPO
32.2
Equity
Affinia – HBM acquisition
53.2
M&A
247
M&A
55
M&A
322
Equity
1,500
Finance
32.2
Equity
–
JV
Paul, Weiss
China
MIH China – ADPG print media joint venture
undisc
JV
Pacific Zhongzheng
China/Singapore
China Animal – Inner Mongolia Biwei Antai Biological Technology acquisition
42.05
M&A
Rajah & Tann
China/Singapore
China Animal – Inner Mongolia Biwei Antai Biological Technology acquisition
42.05
M&A
Sidley Austin
China/Hong Kong
Strong Petrochemical IPO
32.2
Equity
Simpson Thacher & Bartlett
China/Hong Kong/Norway
COSL Norwegian AS acquisition financing
1,500
Finance
Slaughter and May
China/Hong Kong/US
Datang Telecom Technology – SMIC 3G Investment
171.8
Finance
Hong Kong
MTR Hong Kong Rail Links
China/Hong Kong/Singapore
TPV – Philips cross-border M&A transaction
n/a
Construction
15.4
M&A
Stamford Law
China
Ying Li International SGX IPO
365.8
Equity
Tianyin
China
Beijing Financial Street Construction – Hengtai Securities Acquisition
204.6
M&A
Watson, Farley & Williams
China/Hong Kong/Singapore
North China Shipping Holdings – VLCC new buildings acquisition finance
White & Case
China/Hong Kong/Norway
COSL Norwegian AS acquisition financing
China/Hong Kong/Singapore
TPV – Philips cross-border M&A transaction
Wilson Sonsini Goodrich & Rosati
China/Hong Kong/US
Datang Telecom Technology – SMIC 3G Investment
171.8
Finance
Yuan Tai
China
Ying Li International SGX IPOs
365.8
Equity
Yun Zhi Nan
China
Citélum Group PPP
Zhong Lun
China
Shanghai Electric A-share debut
250 1,500 15.4
– 430
Finance Finance M&A
Infrastructure Equity
Does your firm’s deal information appear in this table? Please contact
alb@keymedia.com.au
61 2 8437 4700
7
NEWS | deals >>
| CHINA | ►► Ying Li International SGX IPOs US$365.8m Firm: Yuan Tai Lead lawyer: Wang Daofu Client: Ying Li International Real Estate Firm: Stamford Soh Chun Bin, Stamford Law Lead lawyer: Soh Chun Bin Client: Showy International • Ying Li International announced its intention to list on SGX through a shell company named Showy International • The IPO procedures were completed in three stages: 1. Hong Kong Fuguang Group, the major shareholder of Chongqing Ying Li, completed a reverse takeover of SGX-listed Showy International; 2. the assets of Ying Li were transferred to Showy International; 3. Chongqing Ying Li went public through the new shell company Ying Li International • This is reportedly the first example of a Chongqing-based enterprise debuting overseas • Showy International is the third mainland real estate developer to be listed on SGX after Sunshine Holdings and China Yuanbang Property Holdings
| CHINA | ►► MIH China – ADPG print media JV Firm: Paul, Weiss Lead lawyers: Jeanette Chan, Hans-Günther Herrmann Client: MIH China Firm: Chengyi Jeanette Chan, Paul, Weiss Lead lawyer: Zhang Yunyan Client: ADPG Media Group • MIH China (Mauritius) has closed its 37% equity investment in a new joint venture established with Anhui-based ADPG Media Group, publisher of 13 newspapers and periodical titles
8
• Paul, Weiss, Rifkind, Wharton & Garrison advised MIH on the deal, which required approval from the Ministry of Commerce, the General Administration of Press and Publications and the State Administration of Industry and Commerce • The deal is a rare case of a foreign investment in print media operations approved by several Chinese central government authorities
“The MIH China – ADPG print media joint venture deal is a rare case of a foreign equity investment in print media operations that requires many levels of government approvals. We hope that this successful deal will mark the beginning of the relaxation of foreign investment in the Chinese media sector” Jeanette Chan, Paul Weiss
| CHINA | ►► Nanjing – Veolia JV Firm: Gide Loyrette Nouel Lead lawyer: Rebecca Silli Client: Veolia Transport Firm: In-house Rebecca Silli, Gide team Client: Nanjing Zhongbei • Gide advised Veolia Transport regarding the establishment of a joint venture with Nanjing Zhongbei, a PRC company listed on the Shenzhen exchange and majorityowned Nanjing Municipality • The new venture marks Veolia’s first foray into the Chinese public transport market. It will operate public transport in six cities around Nanjing over a period of 30 years, with 360 million people expected to use the system each year
| CHINA/HONG KONG | ►► Hempel – HOI HUNG ACQUISITION US$145m Firm: Mayer Brown Lead lawyer: Stephen Bottomley Client: Hempel Firm: Linklaters Client: Hoi Hung HHH (BVI) • Hempel, a global manufacturer and distributor of paint coatings, has completed a conditional buy-out of its joint venture partner, Hoi Hung HHH (BVI) Ltd, an indirect wholly-owned subsidiary of China Merchant Holdings International • The HK$1.1bn buy-out included a sale share, an assignment of IP rights and the grant of other rights to Hempel • China Merchants Holdings (International) Co Ltd’s Hoi Hung HHH (BVI) Limited is to sell 64% of Hempel-Hai Hong to Hempel
| CHINA | ►► Citélum Group PPP Firm: Gide Loyrette Nouel Lead lawyer: Stephane Vernay Client: Citélum Firm: Yun Zhi Nan Lead lawyer: Chen Zhibo Client: City Management Bureau of Kunming • Deal involved Citélum Group negotiation of urban lighting scheme for the management of urban lighting in Kunming Municipality, Yunnan Province • The Kunming scheme is expected to be implemented in within six months and will last 15 years. After completion, the project will cover 50,000 lighting points • “The PPP is the first of its kind in China and includes a commitment to meet energy saving targets,” said Stephane Vernay
| CHINA/HONG KONG/NORWAY | ►► COSL Norwegian AS acquisition financing US$1,500m Firm: Clifford Chance Lead lawyer: Amy Lo Client: COSL
Firm: Bugge, Arentz-Hansen & Rasmussen Lead lawyer: Robin Bakken Client: COSL Firm: King & Wood Client: COSL
Amy Lo, Clifford Chance
Firm: Simpson Thacher & Bartlett Client: Lead arrangers Firm: White & Case Lead lawyer: Hallam Chow Client: Lead arrangers
Hallam Chow, White & Case
• Deal involved acquisition financing for China Oilfield Services Ltd (COSL) Norwegian AS, in connection with its US$2.5bn acquisition of Awilco Offshore ASA • Lead arrangers include Bank of China, Standard Chartered Bank, ICBC, HSBC, Calyon, Standard Bank Plc and Sumitomo Mitsui Banking Corporation • This is a complex transaction which requires the coordination of the regulatory requirements of the Hong Kong, Shanghai and Oslo stock exchanges • The deal was the first major successful cross-border acquisition by an A- and H-share PRC company and is largest 100%-stake overseas acquisition in the non-oil and gas sector in China by value to date • Clifford Chance advised COSL on global antitrust issues, debt financing and Hong Kong Stock Exchange regulatory and compliance issues • Bugge, Arentz-Hansen & Rasmussen advised COSL on Norwegian law and King & Wood advised on PRC law
| CHINA/HONG KONG/ SINGAPORE | ►► North China Shipping Holdings – VLCC new buildings acquisition finance US$250m Firm: Watson, Farley & Williams Lead lawyer: Madeline Leong Client: Banking syndicate ISSUE 6.1
NEWS | deals >>
• Deal involved loan facilities for subsidiaries of North China Shipping Holdings in financing the acquisition of two VLCC new buildings • Syndicate of lenders led and arranged by DVB Group Merchant Bank (Asia) Ltd, Skandinaviska Enskilda Banken AB (Publ), Singapore Branch and Bayerische Hypo-Und Vereinsbank AG, Singapore Branch • Cross-border transaction involved PRC, British Virgin Islands, Singapore, Hong Kong, Cayman Islands and England
| CHINA/HONG KONG/ CAYMAN ISLANDS | ►► UTFE-GST takeover bid US$247m
Firm: O’Melveny & Myers Lead lawyers: Colin Law, Peter Chen Client: GST Holdings Firm: Herbert Smith Lead lawyer: Ashley Alder Client: United Technologies Far East Ltd • Citigroup brought O’Melveny & Myers to GST and acted as the financial adviser to GSTI on the bid
• GST’s outstanding shares and options have been taken over by UTFE • GST’s controlling shareholder, GSTI, which owns 53.43%, has executed an irrevocable undertaking to accept the bid
issues involving mainland Chinese law, Sidley Austin served as the counsel to the issuer Strong, while DLA Piper represented the sponsor and underwriter, China Everbright Capital Colin Law, O’Melveny & Myers
►► TPV – Philips cross-border acquisition
• The bid is conditional upon obtaining the applicable Peter Chen, regulatory O’Melveny & Myers approvals or consents, including under relevant PRC and Cayman Islands law • “The structure of this unique transaction had significant bearing on the success and outcome of the deal. We chose to enable the controlling shareholder of GST to cast his vote and have it count towards the majority for compulsory acquisition, which was key to making this a successful privatisation,” said Colin Law, partner of O’Melveny & Myers
| CHINA/HONG KONG | ►► Strong Petrochemical IPO US$32.2m
Firm: King & Wood Client: Strong Petrochemical Firm: Sidley Austin Lead lawyer: Constance Choy Client: Strong Petrochemical Firm: DLA Piper Lead lawyer: Esther Leung Client: China Everbright Capital
US$15.4m Firm: White & Case Lead lawyers: Seung Chong, Jeremy Leifer Client: TPV Jeremy Leifer,
Firm: Slaughter White & Case and May Client: Royal Philips Electronics
• TPV Technology Limited (TPV) has been in a cross-border acquisition of the IT display and public signage businesses of Royal Philips Electronics in more than 45 jurisdictions • White & Case represented TPV in the transaction, with lawyers from 14 offices globally • Hong Kong- and Singapore-listed TPV is the world’s leading manufacturer of monitors and flat screen televisions • This acquisition is a follow-on transaction from an earlier transaction valued US$357m in 2005
| CHINA/SINGAPORE | Constance Choy, Sidley Austin
►► China Animal – Inner Mongolia Biwei Antai Biological Technology acquisition US$42.05m Firm: Rajah & Tann Lead lawyer: Danny Lim Client: China Animal Healthcare Ltd Firm: Pacific Zhongzheng Client: Biwei Antai Biological Technology
Esther Leung, DLA Piper
• Strong Petrochemical’s IPO, Hong Kong’s first in 2009, has raised HK$250m
• The company’s major customers are state-owned oil companies including Unipec, Sinopec, Sinochem, Petrochina, CNOOC, and Zhuhai Zheng Rong Company • King & Wood represented Strong on www.legalbusinessonline.com
CHINA/HONG KONG/ SINGAPORE
• SGX-listed China Animal is seeking approval for the acquisition which is expected to be completed by Q4 2009, depending on when relevant PRC licences are obtained • China Animal proposed to acquire 60% stake of Biwei. The acquisition is structured as a conditional sale and purchase 40% stake, and option for later additional 20% stake
9
NEWS | analysis >>
Analysis
M&A: tide turns for domestic acquirers
Global crisis-induced low company valuations and favourable exchange rates create opportunities for domestic acquirers, but the pitfalls for those bargain-hunting abroad are numerous ►► Chinese buyers on a shopping spree
• Despite the regional and global turmoil, 2008 M&A activity in China remained strong with US$159bn worth of deals, a 44% jump from 2007 • Chinese investors were the most active buyers in the region for 2008, with 2,499 deals amounting to US$105bn or a 20.5% market share • Cross-border outbound transactions for 2008 recorded a 64.4% growth to US$46bn from US$29bn in 2007
Source: Thomson Reuters
J
ust a few years ago, domestic companies were top acquisition targets for foreign investors. Today, many of them are buyers on an overseas shopping spree. The total value and number of overseas investments made by domestic enterprises defined 2008 as a landmark year for outbound M&A. In 2009, as markets in other parts of the world hit bottom and financing becomes more readily available, more offshore investment is expected to take place. Law firms in the region are hoping incomes generated from advising on the cross-border transactions of Chinese investors will offset the downturns in some of the more damaged markets.
Hunger for resources
Deal activity in the natural resources sector, particularly in Australia, Africa and Latin America, has been and will continue to be strong. Chinalco’s joint stake purchase with Alcoa in 10
Rio Tinto for US$14.3bn ranked as Asia’s largest deal in 2008. Sinosteel made its mark as the first state-owned enterprise (SOE) to successfully acquire an Australian-listed resources company with its US$1.3bn takeover of Midwest. CNOOC and Sinopec received international attention on a US$2.5bn takeover bid for Norwegian offshore oil company Awilco and a US$1.9bn offer to acquire Canada-listed oil company Tanganyika respectively.
International firms with a strong presence and experience in the resource-rich regions have found themselves in a better position to win mandates from Chinese investors. According to Deacons partner Ian McCubbin, who led the Deacons team that advised Sinosteel on its takeover of Midwest, the firm’s cross-border M&A work with Chinese companies has doubled over the past 12 months. Half of the M&A revenue is from cross-border deals with state-owned enterprises and most of these have taken place in the resources sector. Domestic firms which have a longestablished relationship with large SOEs and listed and private companies have seen the range of services they provide change over the years to meet their clients’ international ambitions. King & Wood partner Guo Guiying, who specialises in cross-border M&A, said at December’s Beijing International M&A Forum that her firm saw a sharp increase in the number of clients
“Compared to international counterparts, local counsel are usually instructed at an earlier stage of transactions. Some clients also see local counsel as a useful channel for gathering information on foreign policies and legal systems, potential targets overseas and foreign service providers” Zhang Shiwei, K aiwe ISSUE 6.1
NEWS | analysis >>
seeking legal support for their overseas investment and transactions in recent years. Up to 80% of the outbound transactions the firm has advised on are in the natural resources sector. As outbound transactions take place in foreign jurisdictions and are governed by laws and regulations in these jurisdictions, international firms inevitably have an important role to play in getting deals done. However, domestic firms also form an integral part of the advisory teams for Chinese acquirers. “Outbound investments usually involve a complicated approval process from multiple government bodies. One of the important roles of PRC counsel is assisting clients in obtaining all the approvals required,” said Zhang Shiwei, a partner at Kaiwen. He
recently advised Shenzhen Zhongjin Lingnan in its US$470m joint takeover bid with Indonesian partner Antam for Australia’s Herald Resources. Yet the responsibilities of local counsel extend beyond getting government approvals. Zhang said that in cross-border transactions local firms undertake tasks including conducting due diligence, corporate restructuring, advising on transaction structure, establishing offshore entities used in the transaction structure and assisting clients to obtain appropriate financing. “Compared to international counterparts, local counsel are usually instructed at an earlier stage of transactions,” said Zhang. “Some clients also see local counsel as a useful channel for gathering information on
►► 2008年度大中华地区对外十大并购交易 收购方公司
收购方法律顾问
目标公司
美铝公司、中 国铝业公司
Ashurst（为雷曼兄弟 之顾问）、佳利律师事 务所、高伟绅律师事 务所、Macfarlanes、 万盛国际律师事务 所、盛信律师事务 所、Wachtell Lipton Rosen & Katz、王律 师事务所 欧华律师事务所、君 合律师事务所
力拓股份公司 (12% 股权)
Bugge ArentzHansen and Rasmussen、高伟 绅律师事务所、金杜 律师事务所、王律师 事务所 海问律师事务所、路 伟国际法律事务所、 新加坡旭龄及穆律师 楼、苏利文•克伦威尔 律师事务所 Mannheimer Swart ling、司特曼律师事务 所、Vinson & Elkins 的近律师事务所
Awilco Offshore ASA
招商银行 中海油田服 务股份有限 公司
中国华能集 团公司
中国石油化 工股份有限 公司 中国中钢集 团公司 长江基建集 团有限公司 中国石油化 工集团公司 利丰有限 公司 中国中化集 团公司
目标公司/卖方法律 顾问 安德慎律师事务所、 年利达律师事务所、 苏利文•克伦威尔律师 事务所
交易金额(百 万美元) 14,000
高伟绅律师事务所、 的近律师事务所、富 而德律师事务所 Wiersholm
4,655
大士能源有限公司
卖方顾问：艾伦格禧 合伙律师事务所
3,103
Tanganyika Oil Company Ltd
Cassels Brock & Blackwell
1,813
Hardy Bowen、铭德 律师事务所 卖方顾问：Buddle Findlay
879
AED Oil Limited
561
铭德律师事务所
Midwest Corporation Ltd (80.31% 股权) Vector Wellington Electricity Network Limited AED Oil Limited (包 括 Puffin 及 Talbot 等油田资产) (60% 股权) Kathy Van Zeeland
495
Cochrane Lishman、 诺顿•罗氏律师事务所
East Shabwa 油田 (16.78% 股权)
霍金•豪森律师事 务所 卖方顾问：Ashurst
Bell Gully、的近律师 事务所、司特曼律师 事务所 Corrs Chambers Westgarth
永隆银行
3,777
613
465
Source: Mergermarket
www.legalbusinessonline.com
foreign policies and legal systems, potential targets overseas and foreign service providers.” Driven by client needs, many local firms in the past year have strengthened their global network and international capacity, either through establishing offices overseas, joining global law associations or forming strategic alliances with foreign firms. Latest examples include King & Wood’s New York office, Grandall’s Hong Kong office and Wang Jing & Co’s membership of Terralex.
Financial crisis brings opportunity
With the deepening global financial crisis, many companies in developed countries are suffering financial difficulties and seeing their share prices drop sharply. The turmoil could mean bargains around the world for Chinese investors. “Chinese acquirers have fewer obstacles and frictions now in Western countries, given that these countries are lowering their thresholds for foreign investment to relieve the financial pressure on their companies,” said Zhang. In the current circumstances, it is attractive for companies to take strategic stakes in western companies, either to gain market access, secure assets or brands, or acquire technology and management skills. “Lower prices and costs in M&A deals would encourage PRC regulators to continue their policy of backing up domestic enterprises in their overseas investment and M&A. Such governmental support will result in an increased number of deals and better possibility of success,” said King & Wood partner Yang Xiaolei. Although cheaper assets overseas are making more domestic companies eager to jump on the outbound M&A bandwagon, legal advisers have reported certain difficulties in closing deals. “The economic uncertainty has created hurdles for the buyers and vendors to reach an agreement on the value of targets. Investors remain cautious, as some markets are still searching for the bottom,” said Zhang. “Some transactions we are advising on are progressing slowly and a few have come to a halt due to this uncertainty.” Vinson & Elkins, which has represented Chinese companies on 11
NEWS | analysis >>
►► 大中华地区对外并购交易 - 收购方法律顾问排名表 (按金额排名) 2008年
公司名称
1 2 3
高伟绅律师事务所 盛信律师事务所 万盛国际律师事务所
4 5 6 7 8 9 10 11 12 13 14 15= 15=
Ashurst 王律师事务所 海问律师事务所 金杜律师事务所 Bugge Arentz-Hansen and Rasmussen 路伟国际法律事务所 伟凯律师事务所 Loyens & Loeff 新加坡旭龄及穆律师楼 苏利文•克伦威尔律师事务所 司特曼律师事务所 Mannheimer Swartling Vinson & Elkins
a number of high-stake outbound transactions in natural resources, has seen the same market sentiment. “The large SOEs are proceeding cautiously at this point. We don’t see any moves by our Chinese clients to immediately expand their acquisitions of overseas assets,” said Paul Deemer, co-managing partner of the firm’s Beijing and Shanghai offices. “However, we do expect that the climate for Chinese overseas acquisitions will improve later in the year, particularly if it becomes clear that the slowdown has bottomed,” Deemer added. In light of a lower level of activity in the legal services market, clients’ bargaining power is greater than a year ago. Many law firms have been offering clients an array of alternative fee arrangements and discounted billing rates. However, general counsel of companies that are not financially challenged insist that quality of services, efficiency and ability to complete deals within a tight timeframe are the top selection criteria for external legal advisers.
Challenges to overcome
The lack of international experience and the unfamiliarity with foreign legal and business environments have always been the barriers to the globalisation efforts of domestic companies. And bringing a transaction to completion is becoming more difficult due to global turmoil. 12
金额 (百万 美元) 18,670 13,165 12,781 12,740 5,112 4,113 3,797 3,777 3,471 3,372 3,357 3,115 3,103 2,120 1,813 1,813
交易数量 6 2 2 1 3 2 2 1 2 3 1 2 1 2 1 1
“The regulatory and stakeholder environments in Western and emerging markets are likely to become more complex and difficult to navigate as recessionary conditions begin to bite. That means Chinese companies will need to plan their overseas investments carefully,” said Alastair Da Costa, DLA Piper’s managing director for Asia. Outbound M&A deals of Chinese companies share the same pitfalls as any international M&A transaction. Chinese investors are strongly advised to seek expert advice and engage legal counsel with extensive expertise and experience in cross-border transactions. Deemer of Vinson & Elkins suggested that the three key elements for a successful deal are: finding assets or companies at prices that reflect their true value; carrying out a thorough due diligence; and negotiating agreements that provide solid protection to the buyer. “We expect that there will be more distressed sellers in the market, and those will need to be carefully vetted to assure the buyer that it’s getting what it pays for,” said Deemer. ALB
海外并购或 将成为主流 不
久前，国内公司还是境外投资机构的首选收 购对象。如今，许多中国企业已成为跨国并 购交易中的买家。2008年，中国在海外投资的总价 值和成交数创下海外并购的历史新高。 随着境外其它地区的市场逐渐触底以及融资渠道 更加畅通，业内人士预计2009年中国企业将完成更 多海外收购。众多律所对为中国客户提供跨境交易 顾问服务给予厚望，希望该类业务的上升能够弥补 金融危机对其它业务领域造成的影响。
资源类企业主导跨国并购
资源类企业的海外并购交易量，尤其是在澳大利 亚、非洲和拉美市场，增长最为强劲。中国铝业 与美国铝业联手以143亿美元联合收购力拓股权， 成为2008年亚洲规模最大的一笔交易。 中钢集团因以13亿美元收购澳洲中西部公司，成 为首个成功收购澳大利亚上市资源公司的国有企业。 中海油以25亿美元收购挪威离岸石油公司Awilco， 以及中石油以19亿美元收购加拿大上市石油公司 Tanganyika，均受到国际市场瞩目。 在资源丰富的地区，经验丰富且行业影响力较大 的跨国律师事务所颇受中国企业青睐。 的近的合伙人 Ian McCubbin 曾带领团队为中钢 集团收购 Midwest 提供法律顾问服务。 他透露，在过去12个月内，中国公司委托该所 进行的跨境并购工作量增长了近两倍。并购收入 的半数来自国有企业主导的跨境交易，其中多数 在资源领域。 而对于与大型国有企业、上市公司和私营企业保 持长期合作关系的国内律所来说，在过去几年内， 他们的服务范围亦在不断扩大，以便满足客户在国 际交易中产生的法律需求。 金杜律师事务所合伙人郭桂英是代理跨境并购方 面的资深律师。在2008年12月举办的北京国际并购 论坛上，她表示，金杜在近两年来看到中国客户赴 海外投资的项目数量和规模不断增加。其中约80％ 的项目在资源和能源领域。 由于跨国交易多在外国司法管辖地进行，受当地 法律和法规的监管，因此国际律师事务所在此类交 易中具有得天独厚的优势，其作用至关重要。但国 内律所亦为交易中不可缺少的顾问角色，为中国收 购方提供相关中国法律服务。 凯文律师事务所合伙人张诗伟表示：“境外投资 通常涉及多个政府部门的复杂审批程序。协助客户 获得所有必要的审批许可是中国律师担当的重任之 一。”张诗伟近期曾为深圳中金岭南提供顾问服务， 协助该公司与印尼合作伙伴Antam合作，以4.7亿美 元共同收购澳大利亚Herald Resources。
“Large SOEs are proceeding cautiously at this point … However, we do expect that the climate for Chinese overseas acquisitions will improve later in the year, particularly if it becomes clear that the slowdown has bottomed” Paul Deemer, Vinson & Elkins ISSUE 6.1
NEWS | analysis >>
当然，中国本地律师的职责决不仅仅局限于获得 政府审批。张诗伟表示，在跨境交易中，本土律师 事务所还负责提供尽职调查、资产重组、设计交易 结构、建立特殊目的公司等法律意见，并协助客户 获得并购融资。 张诗伟认为：“较之国际律所，本地法律顾问一般 在交易初期开始介入。很些企业将中国律所视为信息 交流平台，收集与境外法规政策、法律体系、潜在海 外投资目标和海外服务中介相关的信息。” 在客户需求的推动下，诸多国内律师事务所在去 年强化了他们的全球业务网络和国际竞争实力，主 要途径包括建立海外分支机构、加入国际律所联盟 或与境外律师事务所签署战略合作协议。最近的实 例包括金杜成立纽约分所、国浩设立香港办公室、 以及敬海律师事务所加盟Terralex。
Analysis
International firms look on the bright side
金融危机带来机遇
随着全球金融危机愈演愈烈，诸多发达国家的公司 面临财务困境，股价暴跌。对中国投资人而言，目 前的全球困境可能蕴涵绝好的收购机遇。 张诗伟表示：“为缓解企业的财务压力，西方国 家降低境外投资的门槛，这意味着中国收购方在西 方国家可能面临的障碍和阻力将减少。” 目前的经济形势有利于中国企业在海外战略性收 购资产和品牌，以占领海外市场，巩固销售渠道或 收购先进技术和管理方法。 金杜合伙人杨小蕾表示：“随着并购交易成本降 低，中国监管机构将继续鼓励中国企业走出去，为 国内企业进行海外投资和并购提供支持。政府的支 持将推动交易量的增加，促进交易的成功完成。” 尽管海外的廉价资产令国内企业对进行海外并购 跃跃欲试，但律师们指出，目前在完成交易方面仍 存在一定困难。 张诗伟认为：“由于全球经济存在很大的不确定 性，买卖双方就成交价值很难达成一致。有些市场 尚未触底，投资人仍保持谨慎。在我们提供顾问服 务的交易中，有些进展缓慢，有些则因不确定性而 被迫暂停。” 美国文森•艾尔斯律师事务所曾获中国企业委托， 参与天然资源领域多宗重要境外交易，对当前市场 亦有相同的体会。北京和上海代表处联合主管合伙 人 Paul Deemer 表示：“目前，大型国有企业仍然 保持谨慎。在我们的中国客户中，还没有一家企业 采取行动，扩大海外资产收购。” Deemer 认为：“尽管如此，我们预计今年晚些时 候中国的海外收购将继续高涨，在市场明确经济低 迷已经触底的情况下将尤其如此。”
有待克服的挑战
缺乏国际交易经验，不熟悉外国法律和商业环境， 这些劣势始终是国内公司全球化过程中的主要障 碍。在经济动荡时期，成功完成交易难度更大。 欧华律师事务所亚洲执行总监 Alastair Da Costa 表示：“西方和新兴市场的监管环境和股东关系日 趋复杂，在经济危机影响深化的背景下更加难以驾 驭。中国公司应谨慎规划海外投资方案。” 与所有跨国并购交易一样，中国公司的海外并购 交易面对同样的挑战。法律界强烈建议中国投资人 寻求专业法律意见，聘请经验丰富且实力雄厚的法 律顾问协助跨境交易。 为确保交易成功，文森•艾尔斯为中国公司提出 三点建议：寻找价格能够体现真实价值的资产或公 司；进行彻底的应尽职责审查；以及通过协议谈判 为买方提供切实的保障。 Deemer 表示：“我们预计，市场上将会出现更 多处境困难的卖方，买方应谨慎审查对方情况，确 定投资物有所值。” www.legalbusinessonline.com
International players are undeniably facing hardships in their home bases of London, New York and beyond, but many of them tell ALB China that the fundamentals of their China operations remain strong
T
here are several thoughts and narratives on how the financial crisis will play out in China, but it is clear that this crisis has already caused a decrease in dealmaking activity. The last quarter of the past year saw a dramatic drop in IPO issuances and M&A transactions, with private equity funds putting the brakes on investments. Like the clients they represent, international firms are also feeling the pain. “The influence of the financial crisis on international law firms is slower than on international banks, but it’s getting more and more noticeable,” said Liu Wei, managing partner of DLA Piper’s Beijing office. “As far as I could figure out, some international law firms in China are trimming staff and 80% of the firms are not busy at this stage,” Liu continued.
Some firms that recruited aggressively when the market was at its peak 18 months ago are adjusting their teams in China by downsizing and becoming more cost sensitive. They have cut back on out-of-demand practice areas, such as capital markets and M&A, to increase those in demand, such as dispute resolution, regulatory and restructuring. Only a few firms have decided to make redundancies in China offices. While economic growth is slowing in China, it continues to offer opportunity. Some recent moves in the market have added more credence to the view that China enjoys a relatively healthy outlook compared to markets elsewhere in the world and is likely to recover from the crisis more quickly. There is a significant trend emerging as internationals increasingly eye China in the midst of the global economic crisis. Some firms, although 13
NEWS | analysis >>
“In such dynamic times, it’s impossible to predict precisely what the year will hold. However, having the right people … is essential if we are to stay ahead of changing trends” Peter Charlton, Clifford Chance they have had to lay off staff or close offices in the US or UK, have established new offices or bolstered their China practices through lateral hires and promotions. Clifford Chance, for example, promoted four lawyers to counsel and appointed several new senior associates in China, following its decision to lay off associates across its offices in the UK and US. O’Melveny & Myers elected four lawyers in China in their global 15-strong 2009 partnership overhaul, while DLA Piper created seven new partnership positions in Asia, six of which are based in China offices. Clifford Chance’s Asia managing partner, Peter Charlton, said that the promotions will help to strengthen the firm against the market conditions. “In such dynamic times, it’s impossible to predict precisely what the year will hold,” said Charlton. “However, having the right people – such as these counsel who understand the region, our clients and their businesses – is essential if we are to stay ahead of changing trends.” Commenting on the new promotions, DLA Piper’s Asia managing director Alastair Da Costa said: “The promotions form part of a strategy that optimises our firm’s team at a time when clients need the best legal and business advice to deal with heightened uncertainty.” “A China practice has been a crucial driver of DLA Piper’s Asian and global growth strategies, and the firm expects it to continue as a source of strength and ongoing growth,” he said. While some firms are boosting their headcount in the region, others are pressing ahead with their plans to penetrate the market or expand their presence. At the end of 2008, US 14
firms Miller Canfield and Loeb & Loeb decided to establish themselves in China, and Bird & Bird and Slaughter & May both announced plans to add one more office to their China practices. Bird & Bird, like Loeb & Loeb, said the IT sector was a driving force. “China continues to be an exciting market, particularly in many of our key sectors, namely IP, communications, IT, life sciences and sport,” said Bird & Bird’s China managing partner, Matthew Laight. And in early January, Herbert Smith, a long-established firm in the region, changed its international management structure by creating two new Asia management roles to improve regional collaboration. Hong Kong corporate partner Andrew Tortoishell has been appointed as Greater China managing partner and Austin Sweeney as the new South East Asia managing partner. Both will report to the firm’s head of Asia, Ashley Alder. Alder noted that the adjustment was not a response to the current market conditions; instead, it was prompted by an increase in business activity across Asia for Herbert Smith, requiring greater cross-office collaboration and more focused management of each of
the three sub-regions of China, South East Asia and Tokyo. “Each Asia sub-region has its distinct markets and growth opportunities, but they also interact actively with each other. Particularly strong trends include China energy companies doing business in Indonesia and Japanese trading houses investing across South East Asia,” said Alder. As in every economic downturn, the business and practices of law firms are inevitably affected. In all, international firms are confident that China has a resilient economy and its legal market holds promising growth prospects. But there is little doubt that 2009 will be a difficult year for everyone and firms are not going to be as busy as they were in 2008. Those who have a balanced set of practices and strong client relations will be better able to weather the storm. ALB
国际所仍然看好 中国市场前景 谈
及金融危机对中国的影响，各方持有不同的 观点。但就侧重于代理交易业务的国际律所而 言，此次危机已经造成显著的业务下滑。 去年第四季度，私募基金紧缩投资，IPO发行和并 购交易额大幅下滑。面对金融危机，国际律师事务所 将与客户共同忍受切肤之痛。 欧华律师事务所北京代表处管理合伙人刘巍表 示：“较之金融危机对跨国银行的影响，危机对国际 律师事务所的影响显现更为缓慢，但这种影响正日 趋凸现。” 刘巍认为：“据我所知，部分在华的跨国律师事 务所正精简人员，现阶段，80％的事务所业务并不 繁忙。” 在18个月前的市场高峰时期，一些事务所曾积极 招兵买马，眼下则积极调整中国业务团队，缩减团 队规模，注重成本控制。对于资本市场和并购等需 求不足的业务领域，律所纷纷削减律师团队，同时
►► Partner headcounts on the rise Firm
Total number of new partners in China
Number of new partners in Beijing
Number of new partners in Shanghai
Number of new partners in Hong Kong
Dechert
3
0
0
3
DLA Piper
6
2
2
2
Latham & Watkins
9
0
0
9
O’Melveny & Myer
5
2
0
3
Reed Smith
2
0
0
2
Note: Numbers include lateral hires and partner promotions between 16 October and 16 January. This table does not purport to be exhaustive. ISSUE 6.1
NEWS | analysis >>
充实需求旺盛的业务领域，诸如纠纷解决、合规和 破产重组。 尽管中国经济增速放缓，仍不乏机遇。近期的市场 趋势表明，较之其它地区的市场，中国的市场环境相 对健康，很可能更快摆脱危机影响。 在经济危机的背景下，国际律师事务所看重中国 市场的趋势日益显现。部分事务所的美国和英国业 务面临窘境，被迫裁员甚至关闭办事处，但他们却 通过横向招聘和晋升合伙人在中国成立新办事处或 者积极开拓中国业务。 以高纬绅为例，在其决定对英国和美国办事处裁员 的同时，中国代表处则将四位律师晋升为顾问律师， 并新任命多位高级律师。美迈斯在2009年初吸收四 位中国律师为其合伙人。欧华则在亚洲提供7个全新 合伙人职位，其中6个分配给中国团队。 高纬绅亚洲主管合伙人 Peter Charlton 认为，晋升 律师可巩固事务所实力，更好应对不利市场条件。 Charlton 表示：“在市场动荡时期，准确预测来年的 业务情况毫无可能。但如果想在波动的市场背景下保 持领先，拥有符合市场需求的人才十分必要。这些被 提拔的律师熟知该地区业务情况，同时对客户以及行 业亦有深入了解。” 在谈及新晋升的合伙人时，欧华亚洲管理合伙人 Alastair Da Costa 认为，晋升是事务所发展战略的组 成部分，可优化事务所团队，提供客户需要的最佳法 律和业务顾问服务，以应对市场的不确定性。 他表示：“中国业务对欧华亚洲和全球业务增长作 出了重要贡献，事务所预计中国业务将继续成为巩
固实力和持续增长的动力。” 在部分律师事务所扩大在华业务团队规模的同时， 另有部分事务所则计划进入中国市场或扩大市场份 额。2008年底，美国明康（Miller Canfield）和乐博 决定在中国开设办事处，鸿鹄和司力达则宣布新增 中国代表处。 鸿鹄和乐博均将 IT 行业视为业务增长的推动力量。 鸿鹄中国主管合伙人 Matthew Laight 表示：“中国将继 续保持市场活力，尤其是事务所的重点业务领域，包 括知识产权、通信、IT、生命科学和体育。” 一月初，在亚洲地区经营历史悠久的史密夫律师事 务所改革全球管理层架构，新增两个亚洲管理职位， 以改善跨地区之间的团队合作。香港公司业务合伙人 Andrew Tortoishell 出任大中华区主管合伙人，Austin Sweeney 则担任东南亚主管合伙人。两人由事务所亚 洲区主管 Ashley Alder 直接领导。
Alder 指出，当前经济环境并非管理层调整的主要 原因，而是受到业务增长的推动，要求亚洲地区各团 队之间更好的合作。 Alder 表示：“亚洲区有三大分支市场。每个分支 市场都有独特的市场情况和增长机会，且相互间具 有密切互动关系。因此，事务所需要更合理的管理 架构，三位主管合伙人将各自负责三大分支市场的 未来业务增长。” 在每一个经济萧条时期，律师事务所的业务都会不 可避免的受到影响。总而言之，跨国律师事务所仍对 中国充满信心，认为中国经济仍将保持增长，法律市 场的增长前景依然乐观。但业界对2009年的情况仍 有一定顾虑，认为所有从业者和事务所都将度过较 为困难的一年，业务量较之2008年会有所下降。对 于业务领域组合相对平衡且客户关系稳固的事务所 而言，定能更好应对金融风暴的冲击。
“The promotions form part of a strategy that optimises our team at a time when clients need the best legal and business advice to deal with heightened uncertainty” Alastair Da Costa, DLA Piper
Firm Profile
Lifang & Partners
外观设计专利保护的重大进步
2
008年12月27日，全国人大常委会通 过了关于修改专利法的决定，其中多 处涉及外观设计条款的修改，进步意 义十分明显。
第一，进一步明确了外观设计的保护对象。
将外观设计定义从实施细则中上升到专利法， 其重要意义在于使公众及执法者注意区分外观 设计与发明、实用新型之不同。在目前尚不能 将外观设计单独立法的情况下，能够使人们对 外观设计保护的对象一目了然。
第二，明确了外观设计专利的保护范围。
外观设计专利权的保护范围从“外观设计产品” 改为“产品的外观设计”，使之与外观设计的定 义相一致，以纠正过去多年实践中在保护外观 设计专利时将着眼点放在外观设计产品上的偏 向，明确了外观设计保护的是产品的新设计， 而不是新产品本身。 www.legalbusinessonline.com www.legalbusinessonline.com
在申请外观设计时，申请人应当提交对该外 观设计的简要说明，在其中说明该外观设计的 新颖性、创造性要点，以此作为外观设计保护 的要点，避免在发生侵权纠纷时，专利权人、 侵权人对该外观设计要保护的部分各持一词， 也避免执法者对此任意认定。
第三，提高了外观设计的保护水平。
一是将相对新颖性条件改为绝对新颖性条件。 即该外观设计申请应不属于在申请日以前在国 内外为公众所知的设计。 二是增加了创造性条件。要求“授予专利权的 外观设计与现有设计或者现有设计特征的组合 相比，应当具有明显区别。” 三是排除了“主要起标识性作用的设计”。明 确规定对“主要起标识作用的设计”不授予专利 权，对大量产品外观设计回归本意，以免出现 大量的与商标、包装装潢相混淆的所谓的外观“ 设计”，大有益处。
四是许诺销售作为外观设计的禁止权内容。 将许诺销售的权利也归与外观设计专利权人， 使专利法的规定与Trips标准更加一致，这是权 利回归，明智之举。
第四，允许同一主题的相近似设计作为一 件申请提出。 这有利于同一主体、就相同产品相同设计风格 的近似外观设计申请并获得专利，在对这类专 利外观设计保护时更加容易作出判断，有利于 鼓励设计人员创新。
程永顺 立方律师事务所高级合伙人 电子邮件: yongshuncheng@ lifanglaw.com 电话: 86-10-64096099 传真: 86-10-64096260 86-10-64096261
程永顺
15
NEWS >>
news in brief >>
Shanghai
US firm Covington in doha alliance US firm Covington & Burlington has formed a strategic alliance with a Qatar-based law firm. The firm will leverage its relationship with the Institution Quraysh for Law & Policy to expand its presence in the Middle East. Although the firm has tapped the Asia market through an office in Beijing, the firm has yet to establish itself in the Middle East. Patton baggs more Qatar office space Marking the fifth anniversary of its opening in Qatar, US-based law firm Patton Boggs moved to a bigger office as a result of its steady growth. The new office, located in the Commercialbank Plaza in Doha, was inaugurated in the presence of staff and officials including the US ambassador to Qatar Joseph LeBaron, the former Qatari economics minister Sheikh Mohamed Al Thani, and Qatar University vice president Dr Sheikha bint Jabor Al Thani. “We now have 12 resident professionals from six different countries, including three Qatari nationals,” said Robert Hager, the firm’s Doha managing partner. The firm was the first US firm licensed to practise in Qatar.
Clifford Chance New Year clean out Clifford Chance has announced that around 80 associates in the London office will be made redundant as it responds to worsening economic conditions and the inexorable slump in the firm’s staple areas such as M&A and banking & finance. It is understood that the layoffs will not affect partners or trainee lawyers. However, a recent promotion of six new Asia-based counsel shows a reaffirmation of the firm’s commitment to the Asian region. Despite the financial crisis, the firm will remain “ambitious”, said Asia managing partner Peter Charlton, with growth in Asia being central to those ambitions. But, although the firm’s redundancy program focused on the London office only, sources close to ALB China suggest that HK cuts are next.
高伟绅新年大裁员
随着经济形势的急剧恶化，传统稳定业务，如并购交 易、银行金融业务量减少的趋势更是极不可挡，英国高 伟绅律师行已宣布其伦敦办事处约80名律师过剩。但可 以确定的是，裁员将不会影响合伙人和实习律师。 然而，律所最近提拔了六位驻亚洲的律师，重申其 在亚洲地区发展的坚定决心。亚洲区管理合伙人Peter Charlton表示，尽管面临金融危机，高伟绅将继续“雄心 勃勃”， 并将亚洲区作为业务发展的核心。不过，虽然 此次裁员计划的重点是伦敦办事处，但和ALB相熟的知 情人士称，香港裁员计划为期不远。
16
Shanghai lawyers launch new international initiative S
hanghai lawyers’ continuing desire to foster industry leadership and seek international cooperation was apparent in the recent signing of a strategic agreement between the Shanghai Bar Association (SBA) and the Law Society of England and Wales (LSEW). The two signatories agreed to share information, conduct exchange visits, hold annual seminars and organise training programs. “Shanghai aims to be an international financial centre, and its legal service is an important element in this,” said Anthony Qiao, vice president of the SBA. “The demand for lawyers with international expertise will increase in Shanghai, so the intention of the agreement is to improve collaboration between Shanghai lawyers and foreign legal professionals,” he continued. The approach of World Expo 2010, in particular, has made the need for internationally qualified lawyers more acute in Shanghai. Under the five-year cooperative agreement, Shanghai lawyers will have the opportunity to participate in training programs, delivered by English solicitors, on many key areas of international practice in Shanghai, and to study overseas through schemes sponsored by the SBA. The agreement will also be beneficial
for the UK solicitors’ firms. Paul Marsh, president of the LSEW, said that China will continue to attract investment despite the current economic climate and provide opportunities for the Anthony Qiao, SBA legal sector. For example, he said, as Chinese companies continue to expand internationally, the Law Society will inform lawyers in China of the UK’s role as the jurisdiction of choice for international dispute resolution. “Our agreement with the Shanghai Bar will also assist solicitors’ firms to develop links with their Chinese counterparts that may well lead to new business opportunities in what is an important and growing regional legal centre,” said Marsh. The first joint activity for 2009, in March, will be a visit by a delegation of Shanghai shipping lawyers to the Law Society. This year will also see the Shanghai Bar strengthening ties with legal professions in a number of other countries. Qiao indicated that a series of similar initiatives with law societies of other mature jurisdictions including Japan, Australia, Germany and the US will be established by the end of 2009. ALB ISSUE 6.1
NEWS >>
uk report
上海律协推进国际 合作
近
期，上海律师协会（SBA）与英格兰及 威尔士律师协会（LSEW）签订战略合 作协议，充分体现上海律师期望继续树立行 业领先地位，积极寻求国际合作。 协议双方同意共享信息、进行交换访问、举 办年度研讨会并组织培训课程。 上海律协副会长乔文骏表示：“上海致力于成 为国际金融中心，法律服务是实现该目标的要 素之一。对于具备国际化专业实力的律师，上 海将保持旺盛需求，因此，该协议旨在增进上 海律师与境外法律专业人士的合作。” 随着2010年世博会的临近，上海对具备国际 从业资格律师的需求尤为迫切。 根据该项为期五年的合作协议，上海律师将 有机会参加英国律师主讲的培训课程，学习上 海国际化业务核心领域的知识，并通过上海律 协赞助的项目赴海外深造。 英国律师事务所亦可通过该协议获 益。LSEW 会长 Paul Marsh 认为，尽管当前 经济低迷，中国仍将继续吸引大量投资，为法 律服务领域提供丰富机遇。 例如，随着中国企业不断拓展国际市场，在 国际纠纷解决的司法管辖地选择方面，LSEW 可向中国律师介绍英国发挥的作用。 Marsh 表示：“上海是具有重要地位且不断成 长的地区法律中心，通过与上海律协签订的合 作协议，亦可协助英国律师事务所与中国同行 建立联系，催生全新业务机会。” 2009年3月，双方将进行首次合作活动， 上海航运领域的律师将组成代表团，访问 LSEW。 今年，上海律协还将巩固与多个其它国家法 律专业人士的合作关系。乔文骏透露，在2009 年底之前，上海律协将与日本、澳大利亚、德 国和美国等成熟司法管辖地的律师协会进行一 系列类似的活动。
www.legalbusinessonline.com
London layoffs rife It has been a bad few months for lawyers in London and beyond. UK firms have been hit hard by the credit crunch, triggering a number of layoffs in quick succession. Among the firms to dismiss City staff in recent months are Eversheds, Orrick, Mayer Brown, Reed Smith, DLA Piper, Taylor Wessing and Squire Sanders. Eversheds is up to its second redundancy consultation, with the latest round tipped to include 45 lawyers and related support staff. Fresh from making cuts across its US network, White & Case has now turned its focus on to its UK offices, and although the number of job cuts in the firm’s London office is not yet clear, it is reportedly aiming to reduce its legal and non-legal headcount by approximately 3%. Forty associates across the real estate, structured finance and corporate practices of Orrick Herrington & Sutcliffe are said to be facing redundancy, as well as two associate jobs and one support staff post in the firm’s London office. Mayer Brown recently launched a redundancy consultation for 11 lawyers working in its London office, while DLA Piper has launched a redundancy consultation likely to result in up to 40 job losses across its UK offices. Partners have been told they will be out of the firing line. Crisis turns focus to strategy While many firms are taking to redundancy consultations to balance the financial fallout from the economic downturn, a few UK establishments are also initiating other tactics to stay afloat. Following a June redundancy consultation, Milton Keynes firm Kimbells recently told lawyers in three
of its departments to move to a four-day week and put the entire corporate team on two weeks’ unpaid leave in the run-up to Christmas. No new staff for Cadwalader Cadwalader Wickersham & Taft will have to break its impressive 100% trainee retention rate, which has remained steady for the last two-and-a-half years, due to worsening market conditions. The firm recently announced that it will not be offering jobs to any of its City trainees due to qualify in March 2009. The intake freeze will affect three trainee solicitors and makes Cadwalader one of the first leading firms in the City to make this move. Deloitte survey reveals slow growth for firms It may not come as a surprise, but recent research from Deloitte reveals that UK firms are struggling with growth in light of the economic crisis. The report noted that fee income across the country’s 100 largest firms had increased by only 5.8% during the second quarter of 2008–09 compared with the same period the previous year. Firms in the top 10 are faring slightly better than their smaller rivals, reporting an average rise in fee income of 11.1% for Q2, but large firms have still been affected, posting only modest increases in revenue. Hey big spender – Norton flashes the cash While most UK firms are having to cut corners in most cost centres, it seems Norton Rose is sailing along just fine – having just spent more than £8m on improvements to its offices. According to the firm’s 2007–08 annual report, £8.6m was spent on additions to its offices worldwide and a further £1.5m has been set aside for IT in the New Year.
ROUNDUP • David Harris will start his second four-year term as Lovells managing partner in May. He was recently re-elected, despite stiff competition from European head Harald Seisler • Bryan Cave recently launched its Paris office, with former Dechert partners Kathie Claret, Jilali Maazouz and Joseph Smallhoover and five other associates on board • Austrian firm Schoenherr is set to take over Herbert Smith ally firm Gleiss Lutz in the New Year. Schoenherr will obtain Gleiss Lutz’s Prague and Warsaw branches, simultaneously launching its own office in Bratislava, Slovakia • Eversheds, Allen & Overy and Ashurst are just a few of the top-tier firms to receive gongs for their work and employees at the recent 2008 British Legal Awards. Eversheds won firm of the year and lawyers from Allen & Overy and Ashurst picked up the lifetime achievement and senior partner awards respectively
17
NEWS >>
news in brief >> Allen & Overy awards 40 scholarship grants More than 40 law students were awarded in the latest Allen & Overy Scholarship Grant Programme. “The Programme was to encourage and motivate students to use their legal skills to conduct research into Thomas Jones, an area in which they felt there was a Allen Overy pressing social need,” said Thomas E Jones, Beijing corporate partner of Allen & Overy.
英国安理国际授奖40名学生
40多名法律专业的中国学生获最新一期英国安理国际律 师事务所奖学金。 “奖学金是为了鼓励和激励学生利用他们的法律技能， 对他们认为有迫切社会需要的领域进行深入研究。”安理 北京代表处合伙人Thomas E. Jones说。
Hong Kong launches Masters program for mainland judges The School of Law at City University in Hong Kong (CityU) has announced the inauguration of a Master of Laws program for 30 Chinese judges in Hong Kong. Organised by China’s legal authorities, the program highlights the government’s strategies to advance judicial reform by widening the exposure of China’s judiciary to international legal knowledge. The one-year program is specially designed under a tripartite arrangement by CityU, the National Judges College of the Supreme People’s Court of the PRC and Columbia Law School. The judges will study for one month at Columbia Law School, after which they will take a study tour to Washington DC, visiting the US Congress, the Supreme Court and the Department of Justice. “As China’s international stature grows, our legal system must grow with it, complete with the higher competence of our judges. Upon their completion of studies at CityU, I am confident they will make important contributions to the betterment of the legal system in China,” said Wan Exiang, vicepresident of the Supreme People’s Court of China, at the inauguration. It is also the first time that China’s legal authorities have organised for Chinese judges to further their legal studies at postgraduate level outside the mainland.
香港为内地法官推出硕士课程
香港城市大学法学院在香港正式推出为30名大陆法官设 立的“中国法官法学硕士课程”。 这个由中国的司法当局组织的课程，突显了中国政 府通过增强司法部门的国际法律知识，推进司法体制 改革的战略。 该为期一年课程根据香港城市大学、中华人民共和 国最高人民法院及其所辖国家法官学院和美国哥伦比亚 大学法学院签署的三方协议专门设定。期间，哥伦比亚 大学将组织这批法官学员考察华盛顿，包括参观美国国 会、最高法院和司法部等机构。 “随着中国的国际地位日益提升，我们的法律体制， 包括法官的素质，也必须与时并进。我深信，这批法官 在城大完成学业后，必将为优化内地法制作出重大贡 献。” 中华人民共和国最高人民法院副院长万鄂湘大法 官在开学典礼上表示。 这也是中国当局司法部门第一次在境外为内地法官组 织硕士级别的课程，具有深远意义。
18
Zhejiang
10th Grandall office opens in Ningbo
S
hortly after the building of the 36km-long bridge on Hangzhou Bay, which has cut the travel time between Ningbo and Shanghai in half, Grandall Legal Group has opened its 10th office in this important port city. The opening of the Ningbo office gives Grandall three offices in the Yangtze River Delta region, with Shanghai and Hangzhou being the other two. This puts the firm in a better position to service a broader and diverse portfolio of clients in the region. Although the three offices are geographically close to each other, Grandall’s executive partner Lv Hongbing is certain that competition between these offices is minimal, as they have different specialties and will focus on different practice areas. The Ningbo office will primarily provide advice and services in relation to all aspects of shipping and property insurance matters. It will also offer
general corporate and international trade legal support. “Ningbo has one of the largest ports in China and is expected to have greater development opportunities in the Lv Hongbing, near future,” said Lv. Grandall “The Ningbo office is an integral part of our strategy to develop a solid shipping practice across major port cities.” In Tianjin, Grandall has an established shipping practice team. A team of experienced shipping lawyers, led by partner Li Daofeng, joined from Zhejiang Jinhan to form a core part of Grandall’s Ningbo office. Li, who served as a judge in Ningbo’s Maritime Court, has been appointed as the managing partner of the new office, where he is working with four other partners. ALB
国浩第十家分所落户宁波 全 长36公里的杭州湾大桥将上海至宁波的行程 缩短一半，该桥通车后不久，国浩律师集团 便在宁波这一重要港口城市开设第10家办事处。 随着宁波办事处的成立，加上上海和杭州，国 浩在长三角地区的办事处已达三家，可为该地区 客户提供更全面服务。 尽管三家办事处在地理上彼此临近，国浩首席 执行合伙人吕红兵明确表示，这三家办事处有不 同的专业分工，注重不同的业务领域，办事处之 间的业务竞争已降至最低。 宁波办事处将主要在航运和财产保险领域提供 全面的顾问和法律服务。除主要业务领域外，
办事处还提供普通公司法和国际贸易领域的法 律支持。 吕红兵表示：“宁波是中国规模最大的港口之 一，近期将有很好的发展机遇。国浩目前的战略 是要在各个重要港口城市建立稳固的航运业务， 宁波办事处的成立是该战略的一部分。国浩已经 在天津建立航运业务团队。 从浙江金汉律师事务所加盟国浩的合伙人李道 峰将带领经验丰富的航运律师团队形成国浩宁波 办事处的业务核心。李道峰曾在宁波海事法院担 任法官，新办事处成立后担任主管合伙人，与其 他四位合伙人共事。 ISSUE 6.1
NEWS >>
Region
Herbert Smith adds two Asia management roles
H
erbert Smith has established two new Asia management positions designed to improve regional collaboration. Hong Kong-based partner Andrew Andrew Tortoishell, Tortoishell and Herbert Smith Singapore managing partner Austin Sweeney will assume two new management roles, overseeing the China and South East Asian regions respectively. Tortoishell will Austin Sweeney, become the Greater Herbert Smith China managing partner, looking after the firm’s business development interests in Beijing, Hong Kong and Shanghai. Sweeney moves from Tokyo, where he has spent two years as a corporate partner, to become the new Southeast Asia managing partner overseeing the Singapore, Thailand and Indonesia offices. Both will report to the firm’s head of Asia, Ashley Alder. “Having in place an appropriate regional management structure will, among other benefits, support this collaboration so Andrew’s and Austin’s appointments mark an important step forward for us,” Alder said. ALB
us report Firms slash staff to battle credit crunch UK firms aren’t the only ones turning to redundancy to counter the effects of the economic downturn. US firms across the board – Squire Sanders & Dempsey, Proskauer Rose and Reed Smith among them – have also been engaging in some pruning of the payroll. Squire Sanders dismissed a total of 30 associate and support staff following its annual employment reviews, citing current and projected business conditions as the major reason. Proskauer Rose, meanwhile, made 35 associates and 25 support staff redundant in its US offices (despite major advances in developing its international network). But perhaps the most dramatic culler of staff has been Reed Smith, who made 115 redundancies across its US offices. Other firms to have cut staff include: Buchanan Ingersoll & Rooney (25 secretarial and administrative staff); Duane Morris (22 marketing and administrative staff); Ballard Spahr Andrews & Ingersoll (13 support staff); boutique IP firm Synnestvedt & Lechner (seven staff; since disbanded); and Blank Rome (nine associates). Christmas bonuses hit by downturn Firms are increasingly having to display Scroogelike tactics in a bid to soften the blow of the credit crunch on their finances. Cravath Swaine, Simpson Thacher, Clifford Chance and Davis Polk are
among the firms whose US associates are receiving reduced bonuses at the end of the year. At Cravath, year-end bonuses for 2008 will range from $17,500 to $30,000, and the firm has canned the special bonus element of its 2008 payments. Simpson Thacher has also cancelled the additional special bonus for its associates, which last year ranged from $10,000 to $50,000, and junior lawyers will receive $17,500 – a severe drop from last year’s payout of $35,000. Clifford Chance associates will receive between US$17,500 and US$32,500 – a far cry from last year’s US$32,000 to US$65,000. The story is similarly austere at Davis Polk, and Cleary Gottlieb and Dewey & LeBoeuf are two more firms to have slashed back associates bonuses. Skadden Arps, however, has decided to go against the grain and has actually matched 2007 figures – minus supplemental bonuses. Partners at DLA Piper share financial load Partners at DLA Piper have been asked to contribute capital to the firm from next year. The strategy – a bid by the firm to reduce its reliance on bank credit and simplify its compensation structure – will only affect the 275 salaried partners at the international firm’s US offices who now receive an income rather than hold an equity stake at the firm. The amount to be contributed will depend on seniority and will give the partners a stake in the firm’s profits less than that of full equity partners.
史密夫调整亚洲管理层
史
密夫律师事务所新增两个亚洲管理职位， 意在改善该地区的业务协作。 香港合伙人Andrew Tortoishell和新加坡主管合 伙人Austin Sweeney将出任全新管理职位，分别 负责中国和东南亚地区。 Tortoishell 将担任大中华区主管合伙人，负责 在北京、香港和上海发展公司业务。Sweeney 将赴东京任职，担任东南亚主管合伙人，负责新 加坡、泰国和印尼办事处，Sweeney 曾在东京 工作两年，担任公司法合伙人。 两位主管合伙人都由事务所亚洲主管Ashley Alder直接领导。他表示：“确立合理的地区管理架 构可带来诸多益处，将有力支持地区协作，任命 Andrew 和 Austin 是事务所发展的重要一步。”
www.legalbusinessonline.com
ROUNDUP • Kirkland & Ellis has promoted 67 of its lawyers to partner across its US and London offices. In the US, the corporate practice alone saw 23 promotions, while litigation had 20 • Cleary Gottlieb has promoted 10 lawyers to partner recently – six in the New York office, two in Rome and one in Brussels • New York-based corporate head Tim Goodell has left troubled White & Case to join US oil company Hess Corporation as general counsel • King & Spalding is close to reaching an agreement with Thacher Proffitt regarding the acquisition of around 100 of the latter’s 195 lawyers • White & Case chairman Hugh Verrier has voiced his commitment to expanding and further developing the firm’s existing international network, in the wake of a management shake-up that saw firm power split among 14 regional groups and a 16-member global practice council set up. Verrier confirmed Latin America and Asia as prime targets for investment
19
NEWS >>
Update >>
Antitrust
Shanghai New rules on equity investment in Pudong New Area
T
he Shanghai Pudong New Area Government issued the Notice of Pudong New Area on Promoting the Development of Enterprises for Equity Investment and Equity Investment Management Purposes (“Notice”) and the Implementing Measures of Pudong New Area on Promoting the Development of Enterprises for Equity Investment and Equity investment Management Purposes (“Measures”) in December 2008.
1. Types of enterprises
Only EEIs and EEIMs whose business registration, tax registration and principal business premises are all in Pudong New Area and complying with the necessary conditions specified in Article 3 in the Notice on Business Registration and Other Issues of Equity Investment Enterprises and their senior officers are eligible to enjoy said preferential treatment.
2. Incentives for enterprises
(1) An incentive on a lump-sum basis for an EEI established in company form An EEI with a registered capital of RMB500 million: RMB5 million An EEI with a registered capital of RMB1.5 billion: RMB10 million An EEI with a registered capital of RMB3 billion: RMB15 million
(2) An incentive on a lump-sum basis for an EEI established in partnership form
An EEI with fund raising amounting to RMB1 billion: RMB5 million An EEI with fund raising amounting to RMB3 billion: RMB10 million An EEI with fund raising amounting to RMB5 billion: RMB15 million
3. Subsidies for senior officers
(1) For the chairman of the board, vice chairman of the board, general manager or deputy general manager of an EEI and an EEIM established in company form, a subsidy equivalent to 40% of his/her total remuneration in the current year shall be granted, and for the investment manager and project manager a subsidy equivalent to 20% of his/her total remuneration in the current year shall be granted. (2) For the chairman of the board, vice chairman of the board, general manager or deputy general manager of an EEI established in company form with a registered capital of RMB 500 million and an EEIM established in company form with RMB 1 billion under management, he/she shall be given a housing allowance or rental subsidy of RMB 0.2 million on a lump-sum basis.
4. Encouragement of investments in Pudong’s enterprises
EEIs are encouraged to invest in the state-owned enterprises, high-tech enterprises, and small and medium-sized enterprises in Pudong New Area. EEIs investing in enterprises specified in industries catalogue and encouraged in Pudong New Area, or investing in other emerging projects encouraged in Pudong New Area, shall be given an incentive equivalent to 50% of the total return on investment achieved in Pudong New Area by such EEIs. Charles Qin: charles.qin@llinkslaw.com Michael Mei: michael.mei@llinkslaw.com Llinks Law Offices 通力律师事务所 19F, ONE LUJIAZUI 68 Yin Cheng Road Middle Shanghai 200120 P.R.China Tel: (86 21) 3135 8666 Fax: (86 21) 3135 8600
20
China: new merger more work for firms A
series of new guidelines issued by the Anti-Monopoly Bureau of the Chinese Ministry of Commerce (AMB) will generate more work in M&A deals, law firms have told ALB China. The new guidelines outline the merger review framework and process, and the information required to notify the AMB of a transaction in accordance with the compulsory pre-merger notification regime under the Anti-Monopoly Law (AML). Notable changes, including draft guidelines for consultation and a merger filing template, make the system of notification more transparent, making it easier for law firms to advise clients on the relevant procedure. For lawyers, more work has to be done, particularly in the pre-filing stage under the new guidelines, which are broadly consistent with the existing practice applied in other mature jurisdictions, such as the US and EU. “More detailed information and documents may be required. The collection and preparation of such documents may be more challenging and result in increased costs,” said Alex Zhang, a partner with Jones Day Shanghai. “Pre-filing consultation with MOFCOM may become a very important process for the purposes of both complying with MOFCOM’s information request and reducing [any] unnecessary burden for the applicants.” Soh Chun Bin, the director of Stamford, holds a similar opinion. “As the reporting requirements under Rule 10 [the rule on foreign M&A introduced in September 2006] are numerous, the new guidelines may have the effect of making some domestic M&A transactions more complex and more challenging to execute,” he said. “However, for foreign–PRC transactions, I don’t think law firms need to adapt their practices significantly.” Kirstie Nicholson, counsel with Lovells Shanghai, saw one potential future opportunity offered by the guideline. “MOFCOM used to require filings under the AML to be made either by the parties themselves or by a domestic PRC law firm, but the new guideline may leave the door open for international law firms to submit filings to MOFCOM in the future,” she explained. Some international firms have already taken early action reacting to the guidelines. Jonathan Gowdy, partner of Morrison & Foerster, said the firm has established a China antitrust team that assists clients in analysing and completing ISSUE 6.1
NEWS >>
Update >>
Insurance A retrospective of the Chinese insurance industry in 2008
J guidelines bring any required notifications for their M&A transactions. “With more than 60 lawyers in China, we actively monitor developments in antitrust and other areas, and keep our clients up to date on changes in the legal and business environments,” added Gowdy. There are still other uncertainties, however, regarding a number of key issues relating to the application of the AML, including whether and how the AMB will apply the AML to joint ventures and how turnover should be calculated. Legal practitioners are awaiting further information. ALB
并购新规为律所创造新机遇
律
师事务所向《亚洲法律杂志》透露，中国商务部反垄断局（AMB）发 布一系列新《指引》，将带来更多并购交易领域的业务。 《指引》概括说明合并审查框架和流程，以及依据《反垄断法》确立的强 制合并前公告制度必须向反垄断局说明的交易情况。 《指引》的变化引人注目，包括并购咨询和并购申请书的模板，使公告制 度更加透明，也使律所就相关流程为客户提供顾问意见更加容易。 根据新《指引》，尤其在预先申请阶段，律师的工作量会更多，与美国和 欧盟等成熟司法管辖地现有的实践方法在很多方面保持一致。 美国众达律师事务所上海办事处合伙人张钊表示：“新《指引》要求提供更 详细的资料和文件。收集并编写此类文件难度更高，导致费用增加。与中国 商务部沟通，进行预先咨询将成为十分重要的流程，这样既能确保符合商务 部的资料要求，也能为申请人减少不必要的负担。” 新加坡Stamford 总监 Soh Chun Bin 持有相同看法。 他表示：“法规第10条（2006年9月实行的境外并购法规）作出多项报告要 求，新《指引》可能造成部分国内并购交易更加复杂，执行难度更大。但对 于中外企业之间的交易，我认为律所无须大幅改变目前的实践方法。” 路伟律师事务所上海办事处顾问律师 Kirstie Nicholson 认为《指引》将提 供潜在的未来业务机遇。她解释道：“以往，中国商务部要求由交易方自己或 中国律师事务所依据《反垄断法》提交申请，但新指引为跨国律师事务所在 将来向商务部提交申请开启大门。” 有些跨国律师事务所已经采取措施，回应新《指引》的要求。美富律师事 务所合伙人 Jonathan Gowdy 表示，美富已经在中国组建反垄断业务团队， 协助客户分析并完成并购交易必要的通告工作。Gowdy 补充道：“我们在中 国拥有60余位律师，正密切关注反垄断和其它领域的发展，并就法律和业务 环境的最新变化及时告知客户。” 尽管如此，在与《反垄断法》申请相关的多个重要问题上仍存在其它不确 定性，其中包括反垄断局是否以及如何针对合资企业应用《反垄断法》，如 何计算营业额。法律业内人士将等待进一步细则出台。
www.legalbusinessonline.com
ohn F Dobbyn, an American professor of insurance law, stated in the preface of his book, American Insurance Law, “there will be great calamity if the insurance companies serve people as people would draw water from a mill”. As the insurance industry is suffering greatly from a sequela of the bull market in 2008, the chief task is to reduce and remove risk from within it. When international insurance groups such as AIG gradually slid, the Chinese insurance industry became lost in a sea densely covered by fog throughout 2008, although plain sailing had predominated in 2007. Increasing numbers of insurance companies have been investing in capital markets as a profit-making venture but their expectations failed to flower in 2008. The data provided by China Insurance Regulatory Commission (CIRC) revealed the yield ratio was 2.41% in the first half of 2008, which was no greater than that of the first quarter of 2007. The insurance industry is an important aspect of finance but the essential aspect, insurance protection, has gradually been diluted. Fortunately, revisions of insurance law focus on insurance contract law, in order to protect and benefit the consumer. However, most people anticipate expansion of the investment channels. With the issuance of the Administrative Provisions on the Solvency of Insurance Companies, strengthening the monitoring of insurance companies’ solvency becomes the most effective measure for protection. At the request of the CIRC, Universal Life Insurance, Interest-distribution Insurance and Insurance Wrappers have gradually decreased their business, their traditional products becoming part of the mainstream current market. Approximately 300 billion RMB in insurance capital has left the securities market. No matter which direction the insurance industry takes, insurance companies must change their operating strategy. Otherwise, not only will harm come to consumers, but shareholders also will suffer. Currently, insurance companies are acting in an urgent and practical fashion to address financial emergencies, due to the strict policies and the pessimism surrounding possible objections. In addition, winter has arrived and traditionally this is the time when the rate of economic growth slows and interest rates are reduced. When the toughest time for the insurance industry arrives in 2009, more and more disputes will appear. Against the background of the global economic crisis, non-contentious matters will shrink while the need for legal services for litigation and arbitration will rise sharply.
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
21
NEWS >>
Shanghai
Update >>
International Tax
M&A financing carves out new turf for lawyers
The UK Pre Budget Report
I
T
he UK pre Budget report was announced by UK Chancellor Alastair Darling on 24th November 2008, with many changes / increases to UK tax rates. The main UK tax changes are :
UK VAT
There will be a temporary reduction in the standard rate of UK VAT from 17.5 per cent to 15 per cent from 1 December 2008 until 1 January 2010.
UK Income tax
From 2009/10: • Increases in personal allowances. From 2010/11: • A progressive reduction in the basic personal allowance to one half for those earning between £100,000 and £140,000 and to zero for those earning over £140,000, reducing by £1 for every £2 of income above these thresholds. From 2011/12: • A new 45 per cent income tax rate on income (other than dividends) over £150,000. • A new 37.5 per cent rate of tax will be introduced on dividends that would otherwise be taxable at the new 45 per cent rate.
Trusts
From 2011/12 all trusts (other than Vulnerable Persons Trusts and Interest in Possession Trusts, which are not taxed at the rate applicable to trusts, but at the beneficiary’s marginal rate) will be subject to a tax rate of 45 per cent on general income and 37.5 per cent on dividends, in line with the rates for individuals with income over £150,000, but applying at any level of income Corporation Tax The Small companies Corporation Tax rate was set to increase from 21% to 22% from 1 April 2009; this increase has now been deferred to 1 April 2010. National Insurance From 2009/10: • The Upper Earnings Limit for primary Class 1 NICs will be aligned with the level at which individuals start to pay higher rate income tax. From 2011/12: • The NICs primary threshold will be broadly aligned with the income tax basic personal allowance. • The main rate of Class 1 and Class 4 NICs will be increased by 0.5 per cent to 11.5 per cent and 8.5 per cent respectively. • The Class 1 employer rate of NICs will be increased by 0.5 per cent to 13.3 per cent. The increased rate will also apply to Class 1A and Class 1B contributions. • The additional rate of Class 1 and 4 NICs will be increased by 0.5 per cent to 1.5 per cent.
Review of offshore centres
A further consultation on the status of the UK’s offshore financial centres ( ie Bermuda, Guernsey, Jersey and the Isle of Man) was announced. By Debbie Annells, Managing Director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong www.azuretax.com, a member of AzureTax Group (Tel) +852 2123 9339 (direct line), (Main Line) +852 2123 9370, (Fax) +852 2122 9209 Registered with the Chartered Institute of Taxation for purposes of anti money laundering legislation.
22
Debbie Annells
n a bid to boost economic development, the China Banking Regulatory Commission (CBRC) recently overturned a ban issuing guidelines to allow commercial banks to lend to domestic companies undertaking acquisitions at home and abroad. Shortly after the guidelines were promulgated, two banks in Shanghai took the plunge by signing an agreement with the Shanghai United Assets and Equity Exchange to offer acquisition finance. Under the cooperation agreement, the Shanghai branch of ICBC and the Bank of Shanghai will offer a total of US$1.46bn (RMB10bn) financing support for M&A transactions. “The financial crisis has created great opportunities for M&A. Several banks have announced acquisition finance as one of their major products in 2009,” said Liu Dali, a Shanghai-based Jun He partner. The new guidelines will help banks extend the scope of their business and stimulate M&A activity, creating new markets for M&A and banking & finance lawyers. “Domestic purchasers now have one more financing tool available for their business growth and expansion, so they are able to close deals more easily,” said Liu Yan, a partner at Tian Yuan. “This change will bring about more opportunities for lawyers to be involved in domestic M&A transactions and industrial consolidations.” However, the guidelines are in general terms and lack specific regulations for certain issues, which could potentially curb deals as banks hold back from lending.
Education
Legal education turns a new page
W
ith the advent of two joint law schools – the China–EU School of Law (CESL) at the China University of Political Science and Law, and the Peking University School of Transnational Law (STL) – China’s legal education is striding vigorously towards the international arena. CESL, which is reportedly the first Sino–EU managed law school, will be jointly operated by 16 Chinese and European universities. It aims to cultivate professionals acquainted with both Chinese and EU law. Academics from prominent European law institutes assume teaching positions. STL, which for the first time applies US-style teaching methods to legal education in China, is also the first law school outside of the US to seek American Bar Association (ABA) accreditation that emphasises intellectual skills rather than the Chinese traditional form of teaching where the students normally play a passive role and memorise legal rules. Both not-for-profit programs have received enormous support from the PRC government and legal professions. China has more than 600 law schools. The addition of these joint law schools supports China’s ambition to push domestic legal education to an international level. “If it’s successful … then I believe the STL could function as ISSUE 6.1
NEWS >>
“It will take a few months before banks engage in M&A lending. They are very cautious amid the global financial crisis, despite having sufficient liquidity,” said Liu. “They also have to meet certain requirements before they can obtain approval from the relevant regulators to provide M&A lending. There are also restrictions on which transactions and purchasers banks can lend to.” ALB
并购融资成为业务新前沿
为
促进经济增长，中国银监会近期解除一项禁令，公布全新《指引》， 允许商业银行向正在国内外进行收购的国内公司提供贷款。 《指引》公布后不久，上海两家银行率先与上海联合产权交易所签订协 议，提供收购融资。依据合作协议，中国工商银行上海分行和上海银行将为 并购交易提供合计14.6亿美元（100亿人民币）的融资支持。 君合律师事务所合伙人刘大力表示：“金融危机提供了绝佳的并购时机。已 有多家银行宣布，将收购融资作为2009年的主要产品之一。” 《指引》将帮助银行扩大业务范围，刺激并购业务，为并购、银行和金融 领域的律师创造全新市场。 天元律师事务所合伙人刘艳表示：“现在，国内收购方又多了一项融资工 具，可推动业务增长和扩张，从而更轻松的完成交易。这一变化将为参与 国内并购交易和行业整合的律师创造更多机遇。” 但新《指引》仅为概括条款，对特定问题缺乏具体规定，银行可能限制贷 款，从而制约交易的完成。
Update >>
Singapore 新交所采取措施力促上市公司快速融资
当前金融危机席卷全球，金融机构紧缩放贷，投资者信心大幅下 挫，使得上市公司融资陷入困境。2008年12月19日，新交所发布 消息表示，在与金管局商议咨询后，正采取措施以方便上市公司 向股东发售配股，及时筹得资金，缓解资金压力。
缩短增发配股所需时间
根据业者反映，目前增发配股所需的时间对发售者和承销商造成 很大的风险。新交所正与业内专家商讨采取合理措施以缩短该时 间。拟推行的措施包括：缩短认购截止日期的通知期、缩减新交 所审核发售文件时间，以及在发售者宣布配股公告之前即接受其 配股申请。该措施详情预计在2009年1月予以公布。
允许分销商和大股东之间的公允安排
a model for rethinking legal education and curriculum reform in China,” said Peter Malanczuk, CV Starr Professor of Law at STL. ALB
在目前低迷的市场环境下，承销商不愿做出任何包销承诺，除非大 股东同意认购其份额内的配股及/或分包部分剩余的配股。该安排可 能需要向大股东支付一定费用，因其事先的认购承诺，大股东放弃 了配股选择权，且其分包的部分剩余配股享有承销费用。 但为了维护其他股东利益，若发售者未经股东大会批准，进行 大股东收取分包费用的配股计划时，须符合特定条件，包括以下 方面： 一是发售者董事会保证分包条款公平，不得损害发售者及其他股 东利益，董事会须就此提供支持理由； 二是发售者董事会确认其与承销商达成的承销条款（包括向承销 商和大股东支付的佣金）基于正常商业往来订立；及 三是承销商须是获得金管局批准从事承销业务的金融机构。 现有的上市规则允许上述承销商和大股东之间的安排，但须就此 获得股东大会的批准，这使得整个配股过程时间较长，发售者和承 销商也面临更大的风险和未知因素。在一些主要地区，可不经股东 大会批准，进行大股东分包的配股发售，以促进发售者在现有市场 条件下，快速募集资金。 上述安排将推行两年至2010年12月31日， 新交所届时将回顾该些措施的有效性。为改善 市场融资环境，新交所欢迎市场参与者积极反 馈，同时在与金管局的商议探讨下，新交所表 示将继续探索应对市场的有效措施。
法律教育翻开崭新一页
巫美清 企業融資部资深律師
随
着中国政法大学中欧法学院和北京大学国际法学院这两所法学院的诞 生，中国的法律教育正积极吸收国际化元素。 中欧法学院是首所中欧联合管理的法学院，将由16所中国和欧洲大学联合 办学。学院旨在培养熟知中欧双方法律的专业人才。欧洲著名法学院的专家 学者将负责教学工作。 北大国际法学院首次在中国的法律教育领域引入美式教学方法，亦是首个 在美国境外可获美国律师协会（ABA）认证的法学院，教学注重智力技巧， 摆脱中国传统教育模式，重视学生主动参与，灵活运用法条。 这两项教育计划均以非营利为目的，为中国政府和法律服务行业提供大 量资金支持。 目前，中国已拥有超过600所法学院。新增的两所联合法学院表明，中国 决心通过探索性教育项目，将国内法律教育推向国际舞台。 北大国际法学院教授Peter Malanczuk表示：“如果该项目获得成功…… 我相信，北大国际法学院将对中国的法律教育的革新和课程改革发挥示范 性作用。”
www.legalbusinessonline.com
Ph: (65) 6322-2228 Fax: (65) 6534-0833 E-mail: cherylvoo@loopartners.com.sg
巫美清
翁慧婷 企業融資部專員 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
23
NEWS >>
REGION
Update >>
Ex-Heller China partners:
Regulatory
►► Where are they now?
Malicious Collusion Prohibited
I
n 1993, as Russian oligarchs snapped up valuable state assets at a discount, China’s legislators set out to draft laws to guard against the same happening in the PRC. Fifteen years and multiple redrafts on, the Enterprise State Assets Law (the “Law”) was passed on October 28 this year and is due to become effective on May 1 2009. The Law sets out a comprehensive framework for the treatment and preservation of “State-Owned Assets”, defined widely as “the rights and interests derived by the state from its investment in various forms in any enterprise”, and extending to cover “State-Invested Enterprises”, i.e. enterprises owned or invested by the state. The Law also contains an array of regulations and punishments aimed at those managers of State-Owned Assets who may be tempted to exceed their powers or abuse their position for personal enrichment. However, while its purpose is more to preserve assets’ value than to prevent their sale, Article 72 of the Law raises serious issues for acquisitions involving State-Owned Assets or StateInvested Enterprises. Article 72 applies to transfers of State-Owned Assets, and to other transactions that involve related persons of a State-Invested Enterprise. It provides that “malicious collusion” (a concept without a fixed definition) in such a transaction would render the transaction invalid if State-Owned Assets are harmed as a result. Although the prohibition of “malicious collusion” already exists under PRC contract law, its inclusion in the Law underlines the government’s determination to use all available measures to preserve the value of State-Owned Assets. In order to minimize the risk that transactions involving State-Invested Enterprises or State-Owned Assets may be cancelled due to “malicious collusion”, we suggest that parties: • Be transparent in all discussions and negotiations, and keep a full and contemporaneous record that can be produced as evidence; • Ensure the valuation of any State-Owned Assets being acquired will stand up to close scrutiny by regulators; and • Conduct thorough due diligence into onshore sellers and management, and consider the benefits that may flow through to management or their family, directly or indirectly, at the expense of benefits to the State. Legislators have informally acknowledged that Article 72 creates uncertainty, and further guidance may eventually be forthcoming. Until then, once the Law becomes effective, caution must be exercised in such transactions.
Peter Davies, associate Paul, Weiss, Rifkind, Wharton & Garrison Hong Kong Club Building, 12th Floor 3A Chater Road, Central Hong Kong Email: pdavies@paulweiss.com Ph: (852) 2846-0377
24
Peter Davies
Name David Chu Nick Seddon Henry Liu Ying Li Joseph Cha Yang Ing Loong Simon Luk David Hall-Jones Michael Phillips
Firm Dechert Eversheds Nixon Peabody Proskauer Rose Proskauer Rose Sidley Austin Winston & Strawn Winston & Strawn Winston & Strawn
Office Hong Kong Hong Kong Shanghai/New York Beijing/Hong Kong Beijing/Hong Kong Hong Kong/Singapore Hong Kong Hong Kong Hong Kong
S
ince the century-old US firm Heller Ehrman dissolved last September, most of the partners and counsel from the firm’s Greater China offices have been snapped up by new entrants keen to expand their offices in the region. Nixon Peabody became the latest firm to build its China practice by picking up seasoned lawyers formerly with Heller. Henry Liu, the former head of Heller Ehrman’s China desk in New York, has been appointed by the firm as the chair of its China practice, to play a leadership role in China and Asia. Liu, also a global finance partner, will divide his time between Nixon’s office in New York and its office in Shanghai, the firm’s first Asia office launched in early 2008. Prior to joining Heller, Liu had served as the general counsel and director-general at the China Securities Regulatory Commission (CSRC) and as a managing director of investment banking Donaldson, Lufkin & Jenrette and Credit Suisse First Boston. “Our clients around the world will benefit from Henry’s deep, first-hand and interdisciplinary experience with business, finance, and how rules and regulations work in China and Asia,” said Harry Trueheart, chairman of Nixon Peabody. “Our China and Asia practice will gain from his veteran knowledge of successful building and managing country practices in the past.” Dechert, Winston & Strawn, Sidley Austin, Proskauer Rose and Eversheds have also appointed exHeller partners to expand or establish their Asia presence.
Hong Kong
Allen & Overy restructures
A
llen & Overy is restructuring its Hong Kong office in the wake of a seven-partner departure late last year. The Magic Circle firm outlined in a statement that the restructure was caused by the adverse economic climate and the departure of seven corporate partners – including the firm’s top corporate people Michael Liu and Kenneth Chan – who moved to Latham & Watkins last October. “Our business in Hong Kong is undergoing a restructuring, in view of the departure of seven partners and exceptionally difficult market conditions. In any restructuring, the interests of our people are paramount. We are still exploring a number of options with our people and, due to this, we are not able to comment further.” The departures left the firm’s corporate practice with only four partners. ISSUE 6.1
NEWS >>
where are they now? Winston & Strawn, for example, has hired Simon Luk, David Hall-Jones and Michael Phillips as partners to set up a Hong Kong office, which will be formally affiliated with a local partnership encompassing these three new partners. The firm has also begun the process of formalising its presence in Beijing and Shanghai, with several legal professionals from Heller’s legacy offices in China. ALB
前海陆中国合伙人：何去何从？
去
年9月，百年历史的美国海陆律师事务所倒闭， 诸多新进入大中华地区且急于扩大规模的跨国事 务所纷至沓来，将多数前海陆大中华地区办事处的合伙 人和顾问律师招至麾下。 Nixon Peabody 最晚进入中国市场，招募多位经验丰富 的前海陆律师。Henry Liu 是海陆中国业务前主管，在纽 约工作，现加盟 Nixon Peabody，担任中国业务主管，在 律所的中国和亚洲业务领域发挥领导作用。 Henry Liu, Liu 亦担任律所全球金融合伙人，将往返于 Nixon 的纽 Nixon Peabody 约和上海办事处工作，上海办事处成立于2008年初，是 该所的首个亚洲办事处。 加盟海陆之前，Liu曾在中国证监会担任总顾问律师和 主任，并在美国和全球投资银行帝杰银行和瑞士信贷第 一波士顿银行担任投资银行业务执行总监。 Nixon Peabody 主席Harry Trueheart表示：“在商业 和金融领域，Henry 拥有深厚、贴近实际且跨行业的经 验，熟知中国和亚洲法律法规的运作方式，定会令律所 的全球客户获益匪浅。”“Henry 曾成功建立并管理中国法 Michael Phillips, 律业务，律所的中国和亚洲业务定会从中受益。” Winston & Strawn Dechert、Winston & Strawn、盛德、普士高和安永实 等律所亦任命前海陆合伙人负责拓展或建立亚洲业务。 以Winston & Strawn为例，该律所聘用Simon Luk、David Hall-Jones 和 Michael Phillips 担任合伙人成立香港办事处，该办事处将成为律所的正式附 属机构，由三位新合伙人建立本地合伙关系。Winston & Strawn 亦开始正式 确立北京和上海的业务，招聘前海陆中国办事处的多位法律专业人士。
Hong Kong office Although it is believed that around 10 associate positions were being reviewed as part of the restructure, a message posted on Allen & Overy’s intranet last week was said to have reassured staff that the firm was maintaining job security as a top priority. ALB
安理重组香港办公室
继
去年七位合伙人离职后，安理律师事务所正重组香港办公室。 该所在一份声明中指出，不利经济环境和七位公司法合伙人的离职是 重组的主要原因，离职合伙人包括律所顶尖公司法律师Michael Liu 和 Kenneth Chan，二人于去年十月加盟瑞生律师事务所。 “鉴于七位合伙人的离职和异常困难的经济环境，律所正重组香港业务。 在任何重组工作中，员工利益始终意义重大。我们仍在探讨可选的重组方 案，因此，目前无法提供进一步情况。”
www.legalbusinessonline.com
arbitration 新加坡国际仲裁最新案例 – 当事人意思自治
新
加坡高等法院最近公布一起裁定，驳回申诉人对合同解释 予以确认的诉讼请求。法官裁定书（[2008]SGHC186）表 明，争议合同的条件条款含有仲裁协议，其表述为：调解 最终不成时，当事人应当将争议或分歧向双方约定的一仲裁员书面 提交仲裁；若约定仲裁员不成，则由一方当事人向新加坡国际仲裁 中心（“新仲”）主席申请提名仲裁员，向该仲裁员提交。本款所指 仲裁应当依据仲裁开始时最新施行的《新加坡国际仲裁中心仲裁规 则》（“新仲规则”）进行，新仲规则视为本仲裁条款的一部分。 申诉人主张，新仲规则第5.1款以合同条件的条款形式并入合同， 结合合同的条件条款和新仲仲裁规则来看，双方当事人尚未约定独 任仲裁员，新仲主簿官有权视仲裁规则规定的例外情况指定三名仲 裁员。申诉人请求法院对其主张作出确认裁定。 法官裁定书表明，新仲主簿官在仲裁开始后作出决定：1）合同条件 条款规定由独任仲裁员审理案件；2）新仲规则第5.1款没有限制当事人 自治的意图，没有授权主簿官自主改变当事人约定的仲裁员人数。 法官认为，新仲规则对仲裁规则的解释权做了规定1，但并未排 斥法院对当事人协议进行解释的管辖权。本案中，鉴于新仲规则第 5.1款已并入合同，成为合同条款的一部分，因此双方当事人可以 寻求法院的解释。 针对申诉人主张合同条款中“一仲裁员”的表述不是指“独任仲裁员” 的请求，法官认为，“一仲裁员”与“一名单独的（独任）仲裁员”或者“ 一名仲裁员”表达的意思无异。从意思本质上看，“一仲裁员”就是“一 名仲裁员”，表述清晰。法官认定，合同已约定独任仲裁员。 关于申诉人主张本案中新仲主簿官有权指定三名仲裁员的请求。 新仲规则第5.1款的规定是，“除当事人另有约定，或者主簿官经适当 考虑当事人建议、争议复杂性和涉及数额或者与争议有关的其他情 况，认为需要指定三名仲裁员的情形外，应当指定独任仲裁员。” 对此法官认为，新仲规则第5.1款中“除当事人另有约定，或者主 簿官……认为需要指定三名仲裁员的情形外”，是指仅在当事人没 有约定仲裁员人数的情形下，适用默示独任仲裁员的规定，如果当 事人已明确仲裁员人数，则该默示规定不再适用。这“体现了当事 人自治的概念”2。其中“主簿官……认为需要指定三名仲裁员的情形 外”，仅在于减轻默示约定独任仲裁员的硬性程度，授权主簿官在 特定情况下指定三名仲裁员。然而主簿官行使裁量权的前提是，当 事人的仲裁条款没有指明仲裁员人数。法官认为，新仲是关注和尊 重仲裁中当事人意思自治的，对于当事人在合同中明示表达的仲裁 员人数（本案中的是一名仲裁员），本意上不会授权主簿官推翻当 事人这一清晰的愿望。法官还认为，当事人仲裁协议与新仲规则第 5.1款相比较而言，应当优先适用。 最终，法官驳回申诉人的起诉请求。 新加坡仲裁一向奉行当事人意思自治原则。该案结果再次证明， 新加坡不仅在仲裁立法和制定机构仲裁规则时，充分考虑当事人自 治，在实践中，作为新加坡唯一的仲裁管理服务机构－新仲，切实 遵循当事人自治原则。新加坡法院对仲裁管辖权以及当事人的意思 自治给予相当的尊重。 1 新仲规则第35.2款规定，该仲裁规则中，有关仲裁庭权力与职能，由仲裁庭解 释，规则中所有其他条款应当由主簿官解释。 2 法官在此引用了新仲主簿官对当事人复函中的说明。
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
25
NEWS | appointments >>
►► LATERAL HIRES Name
Leaving
Going to
Practice
Location
Yang Sidong
Genesis
Grandfield
Intellectual property
Beijing
Charles Pan
CIETAC
Yao Liang
Corporate & financing, Litigation & arbitration
Shanghai
Eliot Clauss
US Court of International Trade
Yao Liang
Litigation & arbitration
Shanghai
Ding Zhenyu
Dewey & LeBoeuf
Run Ming
Corporate
Shanghai
Donald J Hess
Allens Arthur Robinson
Jones Day
M&A
Hong Kong
Kit Kwok
Roosevelt Sino Retailers
DLA Piper
Corporate
Shanghai
Sherry Yin
Orrick
Morrison & Foerster
Corporate
Beijing
Name
Firm
New title
Practice
Location
Nathan Bush
O’Melveny & Myers
Partner
Litigation & trust matters
Beijing
David Roberts
O’Melveny & Myers
Partner
Private equity M&A
Beijing
Peter Chen
O’Melveny & Myers
Partner
M&A, IPO
Hong Kong
Friven Yeoh
O’Melveny & Myers
Partner
China practice
Hong Kong
►► PROMOTIONS
Patrick Wong
Reed Smith
Partner
Corporate
Hong Kong
Nathan Dentice
Reed Smith
Partner
Litigation
Hong Kong
Wang Jianyun
Wang Jing & Co
Partner
Litigation, corporate
Guangzhou
Li Rongcun
Wang Jing & Co
Partner
Maritime, corporate
Xiamen
Paul McKenzie
Morrison & Foerster
Managing partner
Corporate, foreign investment
Beijing
Chris Terry
DLA Piper
Partner
Corporate
Beijing
Sammy Fang
DLA Piper
Legal director
Litigation and regulatory
Beijing
William Leung
DLA Piper
Partner
Litigation and regulatory
Hong Kong
Michael Yau
DLA Piper
Partner
Finance and projects
Hong Kong
Claudio d’Agostino
DLA Piper
Partner
Corporate
Shanghai
Genesis
Grandfield
Grandfield bolsters IP practice The latest addition of Yang Sidong from Genesis to Grandfield’s partnership will enhance the firm’s expertise in commercial legal services, particularly IP practice in China. Before joining Genesis, Beijing-based Yang was recognised as the founder and former director of the first Chinese private patent firm, Capital Patent Firm, established in 1994. He has 14 years’ practical experience in patent filings, intellectual property protection and litigation. He has advised a large number of clients on a wide range of work, with an emphasis on IP-related matters. Clients include: Huawei Technology, FAW Mazda Motor Sales, Huawei 3COM, Beijing Rate New Technology, Shanghai Kangyu and Copper Door Design Engineering. He has also handled many corporate restructuring projects and M&A deals.
国枫力促知识产权业务
国枫律师事务所最近将建元的杨思东招至麾下，担任 合伙人，杨思东的加盟将巩固国枫在商业法律服务领 域的实力，尤其是中国的知识产权业务。 进入建元之前，杨思东于1994年创建中国首家私人 专利l律师事务所－首都专利律师事务所。 在专利申请、知识产权保护和诉讼领域，杨思东拥
26
有14年工作经验。他曾为诸多客户提供顾问服务，内 容涵盖多个领域，重点从事知识产权相关业务。客户 包括：华为技术有限公司、一汽马自达销售公司、华为 3COM公司、北京雷特新技术实业公司、上海康宇铜 门设计工程有限公司。他亦曾受理诸多公司重组项目 和并购交易。 various
Yao Ling
Two consultants get nod from Yao Liang Yao Liang has added two corporate lawyers, Charles Pan and Eliot Clauss, as consultants in its Shanghai office, a move demonstrating the firm’s desire to increase its capability of servicing international corporate clients. Immediately before joining Yao Liang, Pan was a division Charles Pan chief of the China International Economic and Trade Arbitration Commission (CIETAC) – Shanghai Secretariat. “Joining Yao Liang is simply due to my interest in the areas of dispute resolution practice, especially transnational commercial arbitration. This firm provides me with a solid platform to build on,” Pan said. Clauss has worked for the past 20 years on crossborder business transactions, particularly on China–
US-related matters. He brings key client contacts from his China–US work and will advise Chinese clients establishing businesses in the US. A graduate of the University of Wisconsin and the New York Law School, Clauss successively served the state and federal courts of New York and Connecticut, and the United States Court of International Trade before joining Yao Liang.
耀良新增两位顾问律师
耀良新增两位公司法律师潘燕峰和柯龙斯(Eliot R Clauss)，担任上海办事处顾问律师，表明律所正不断 巩固自身实力，为跨国公司客户提供更好的服务。 加入耀良之前，潘燕峰曾在中国国际经济贸易仲裁 委员会（CIETAC）上海秘书处部门主管。潘燕峰表 示：“加入耀良的原因在于，商业纠纷，尤其是商业仲 裁，一直是我的兴趣所在。耀良为我提供了坚实的发 展平台。” 柯龙斯在跨境交易领域拥有20年工作经验，尤其熟 悉中美相关事务。凭借其中美工作背景，柯龙斯可为耀 良吸引重要客户，将为有意赴美发展业务的中国客户 提供顾问服务。 柯龙斯毕业于威斯康星大学(University of Wisconsin)和纽约法学院(New York Law School)，加 入耀良前，曾在纽约州和康涅狄格州的州法院和联邦 法院以及美国国际贸易法院执业。
various
Run Ming
Run Ming adds international lawyers to corporate team The bleak outlook for the economy has not discouraged Run Ming from its desire to boost its service team by recruiting legal professionals with an international background. The Beijing-headquartered firm lured corporate finance lawyer Ding Zhenyu (Philips) from the Hong Kong office of Dewey & LeBoeuf for the partnership of its Shanghai office in January 2009. Ding has extensive experience in the area of crossborder M&A, corporate finance and project finance. He started his legal practice at Fangda Partners before moving to Hong Kong where he successively served two international firms, Simmons & Simmons and Dewey & LeBoeuf. Ding will lead Run Ming in its further development of foreign-related legal services in Shanghai. Run Ming has made several other appointments from other international firms, including Latham & Watkins, Orrick and Paul Hastings. The new recruits will be based in Beijing and Shanghai to strengthen and improve the firm’s position in China’s foreignrelated legal service market.
润明扩充高水准国际金融团队
尽管经济前景堪忧，润明扩充业务团队的步伐并未停 止，近期招募具有国际化背景的法律专业人才。 总部位于北京的润明律师事务所将杜威路博律师事 务所香港办事处的公司律师丁震宇招至麾下，于2009 年1月赴上海办事处担任合伙人。 丁在跨境交易、公司金融和项目金融方面拥有丰 富经验。他曾在方达任职，后转赴香港，连续在两家 跨国律师事务所任职，分别为西盟斯和杜威路博。他 将令润明上海团队进一步开拓与境外相关的法律服 务市场。 ISSUE 6.1
NEWS | deals update >>
mergermarket M&A deals update
www.legalbusinessonline.com
27
NEWS | appointments >>
润明还任命来自其它跨国律师事务所的多位律师， 包括美国瑞生、奥睿和美国普衡。新入职律师将在北 京和上海办事处工作，巩固润明在境外相关法律服务 市场的专业地位。
Wang Jing
Wang Jing welcomes two to partnership Wang Jing & Co has appointed Guangzhou-based Wang Jianyun and Xiamen-based Li Rongcun to its partnership as a result of their performance. Wang’s practice focuses on litigation and contentious matters relating to international trade, foreign investment, M&A and IPOs. He worked in Wuhan before joining Wang Jing in 2003. Wang has been head of the corporate/IP group since January 2007. Li joined Wang Jing in 2002 from Penavico Shantou where he had taken the position of the manager of the shipping department and legal counsel from 1994 to 2002. Educated at Shanghai Maritime University, Li specialises in international shipping management and maritime law, and will continue to practise in Xiamen, one of China’s main port cities.
敬海晋升两位合伙人
由于业绩出色，敬海将广州办事处的王建云和厦门办 事处的李荣存晋升为合伙人。 王建云的业务重点包括诉讼和国际贸易、外商投 资、并购和IPO相关的争议事务。2003年加入敬海前， 王建云曾在武汉工作。自2007年1月，王建云开始担任
28
公司/知识产权业务部门主管。 1994至2002年，李荣存曾在汕头外轮代理船务公 司担任船务部经理和法律顾问，2002年加入敬海。李 荣存毕业于上海海事大学，业务领域为国际船务管理 和海事法，将继续在中国重要的港口城市厦门工作。
Allens
Jones Day
Leading M&A lawyer joins Jones Day Jones Day has welcomed M&A expert Donald J Hess into the global partnership of the firm’s finance practice team in its Hong Kong office. Hess has over two decades of extensive experience in M&A deals across Australia, Europe, the US and particularly Donald J Hess Hong Kong, where he acted for multinational corporations with interests in China, Hong Kong and other Asian markets for 14 years. Prior to joining Jones Day, he was a partner in Hong Kong for leading Australian law firm Allens Arthur Robinson.
著名并购律师加盟众达
众达成功吸引并购法律专家Donald J Hess加盟，担 任其香港办事处金融业务团队合伙人。 Hess 在并购交易领域拥有超过20年深厚经验，熟 知澳大利亚、欧洲和美国业务，尤其熟悉香港业务，他
曾在香港工作14年，为多家在中国、香港和其它亚洲市 场开展业务的跨国公司提供法律服务。加盟众达前， 他在澳大利亚著名律所安德慎担任合伙人。
various
DLA Piper
DLA Piper boosts corporate expertise DLA Piper has appointed USqualified lawyer Kit Kwok as a corporate partner in Shanghai. Kwok joins DLA Piper from Roosevelt Sino Retailers where he was chief operating officer and legal counsel. He focuses Kit Kwok his practice on a variety of corporate matters including structuring, due diligence, documentation, regulatory compliance and taxation planning. Following Kwok’s appointment, DLA Piper further strengthened its China practice by promoting four associates to partnership. The new partners are Chris Terry (Beijing), William Leung (Hong Kong), Michael Yau (Hong Kong) and Claudio d’Agostino (Shanghai). Beijing-based Sammy Fang has been promoted to legal director.
欧华晋升公司业务律师
欧华宣布，将持有美国律师执照的Kit Kwok晋升为
ISSUE 6.1
NEWS | appointments >>
上海公司业务合伙人。加盟欧华之前，Kwok 曾在 Roosevelt Sino Retailers担任首席运营官和法律顾 问。他重点从事诸多公司事务，包括重组、应尽职责、 文件编制、监管合规及税务计划。 任命Kwok之后，欧华又将五位律师晋升为合伙人，进 一步巩固中国业务。 新合伙人包括Chris Terry（北京）、William Leung（ 香港）、Michael Yau（香港）和Claudio d’Agostino（上 海）；北京办事处的Sammy Fang被晋升为法务总监。
O’Melveny & Myer
O’Melveny elects four new partners Four China-based lawyers have been promoted at O’Melveny & Myers. In Beijing, competition lawyer Nathan Bush and corporate transactions attorney David Roberts, and, in the Hong Kong office, Friven Yeoh, Friven Yeoh who advises on cross-border dispute resolution, and corporate finance lawyer Peter Chen are now partners.
美迈斯推选四位新合伙人
四位律师进入美迈斯2009年全球15强合伙人榜单。在北 京，竞争法律师Nathan Bush和公司交易律师David Roberts得到晋升，在香港，负责跨境纠纷解决的 Friven Yeoh和公司金融律师Peter Chen得到晋升。
Reed Smith
Reed Smith promotes two in Hong Kong Reed Smith has elevated 22 new partners worldwide, including two in Hong Kong. The new Hong Kong partners are Patrick Wong and Nathan Dentice. Wong has extensive experience in corporate finance matters including initial public offerings, debt and equity type Patrick Wong fund raising exercises, corporate restructurings, takeovers, M&A and general commercial matters. Dentice has had extensive practice in general commercial and public law litigation.
齐伯礼晋升两位香港律师
齐伯礼律师事务所(Reed Smith)在全球范围将22位律师 Nathan Dentice 晋升为合伙人，其中2位为香 港律师。 两位香港办事处新任合伙人是Patrick Wong 和 Nathan Dentice。Wong 在公司金融领域经验丰富， 包括首次公开募股、债务和股权类型融资操作、公司 重组、收购、并购和普通商业事务。Dentice 在普通商 业事务和公共法律诉讼领域经验丰富。
various
Morrison & Foerster
MoFo’s Beijing office changes hands While none of the 10 lawyers Morrison & Foerster recently made partner across its global network based in China, the firm has reeled in Sherry Yin, a corporate specialist, as a partner to bolster its Beijing team. Yin joins MoFo from Orrick where she has been the managing partner of its Beijing office. Prior to joining Orrick, she had been at Coudert Brothers for 11 years. At the same time, MoFo has named Paul McKenzie the new managing partner of its Beijing office, succeeding Steve Toronto, who has departed to join the executive team of one of the firm’s top clients in China. Regarding Toronto’s departure, Paul McKenzie said: “Steve will be joining the executive team of one of our top clients in China. We expect to continue to have a close working relationship with Steve in his new role.”
美富北京任命新管理合伙人
原奥睿律师事务所北京代表处管理合伙人尹小微近 日作为公司业务合伙人加盟美富，并常驻其北京代表 处。加入奥睿前，尹曾在美国高特兄弟律师事务所任 职11年。 与此同时，美富任命 Paul McKenzie 担任北京代表 处管理合伙人，接替 Steve Toronto。Toronto 近期离 开美富，加入该所在中国的一位大客户的管理团队。 Toronto 自2000年担任北京办事处主管合伙人。在 其任期内，美富曾担任第29届奥运会北京奥组委国际 法律顾问。
Profile
Blancpain
Blancpain宝珀“Saint-Valentin 2009” 情人节
专
为温馨情人节设计女表、并献给天 下有情人，已成为Blancpain宝珀表 历年的传统。每年此时，Blancpain 宝珀表位于瑞士制表重镇Le Brassus 的制表工坊，都会专为这一浪漫的节日而定制一 款精美的限量版女表，以传达有情人之间浓浓的 爱意。这些定制的限量版女表 都会体现浪漫的女性优 雅风格，诠 释传统与 创新相结 合的顶级制表 工艺。Blancpain宝 珀制表师们在设计 女表时，总伴随 着绵绵不绝的 创意，以全然 女人风格的精 神，赋予了 顶级制表工 艺以美丽、纤 细和精致优雅的 www.legalbusinessonline.com
新生命，将时间演绎成爱的赞美诗，献给全天 下的有情人。而今年，Le Brassus的制表工坊推 出了一款诠释现代浪漫爱情的全新高雅时计：99 只限量版飞返计时码表，优雅的风格展现的是爱 恋者的心动。毫无疑问，2009年情人节限量女表 将以其颇具运动时尚的特征，吸引众多女性的目 光，成为能让恋人动心的一份珍贵礼物。 每年的情人节对于Blancpain宝珀表都具有独 特的象征意义，也为其带来了无尽的创意。为 迎接今年的情人节，Le Brassus的制表工坊推 出的这款全新限量版飞返计时码表，采用了独 具匠心的设计，巧妙融合了珍珠母贝和红宝石 的纯洁与高雅，充分展现了Blancpain宝珀顶级 工艺的魅力与精华。为了向Blancpain宝珀在女 表设计所取得的创新制表工艺致敬，这款女表 配备了经典的Calibre F185机芯，该机芯曾用于 1998年全球首款女用飞返计时码表，擒纵机构 的运动旋律，恰似爱恋者律动的心跳。 这款Blancpain宝珀表“Saint-Valentin 2009”情 人节女表，每一方寸的细节都赋予了女性所固 有的时尚品味，优雅而充满活力。直径34mm 的表壳，白色珍珠母贝的优雅表盘，匠心独运
地饰以尊贵红宝石围成的火红心形图案。阿拉 伯数字的时标和锥形镂空的指针，呈现一种精 致的视觉外观，与之辉映的是红宝石和第14日 数字（日期中唯一被标志为深红色的数字）的 红色耀眼光芒，尽显设计与材质的情趣。 Blancpain宝珀表2009年情人节限量女表的外 形尽管十分简洁大方，却处处彰显其典雅的风 范。该款表配有自动上链的Calibre F185机芯， 精准运行，提供时、分、秒和日期显示。由于 安装了高档表所独有的柱形轮系统，佩带者只 需操作表壳边缘的按钮即可轻松调校时间。 蓝宝石水晶透明后盖，能让佩带者体验手工 精致的表饰，体现了Blancpain宝珀顶级制表 工艺的精髓。Blancpain宝珀表“Saint-Valentin 2009”情人节女表全球限量99只，每只均配有 手工缝制白色鳄鱼皮表带和折叠表扣。 媒体垂询，请联络 BLANCPAIN宝珀上海办事处 张芊小姐/佘佳琳小姐 电话: 021-24125265/5228 传真: 021-24125005 E-mail: suki.zhang@sh.cn.swatchgroup.com/ tudy.she@sh.cn.swatchgroup.com
29
FEATURE | in-house interview >>
Global business in safe hands Zhang Wei, general manager of the legal department of the Industrial and Commercial Bank of China, discusses the evolving role of in-house counsel in a globally expanding Chinese company such as his own
E
ver since 2005, when the Industrial and Commercial Bank of China (ICBC) was preparing for its history-making IPO and the dual listing in Hong Kong and Shanghai, Zhang Wei’s plate has been overflowing. As an integral part of the IPO team, Zhang led the legal department at ICBC’s headquarters, which then consisted of fewer than 20 staff; he worked around the clock to ensure every part of the IPO process was completed within the timeframe. The country’s largest bank going public marked an important milestone in the reform of the financial sector and was an intricately structured project on a vast scale. Zhang recalled that the paper documents in the data room for the due diligence, restructuring and IPO could easily have weighed more than 80 tons. All the professional service providers in the IPO team, including investment banks, financial advisers and legal counsel, had to be prudently appointed by a selection panel headed by the now ICBC president Yang Kaisheng, given the magnitude of the task in hand. Six firms with strong capital markets practice stood out from the rest and were given the privilege of working on the IPO. King & Wood, Herbert Smith and Davis Polk advised ICBC on PRC law, Hong Kong law and the US law respectively, while Shearman & Sterling, Freshfields and Haiwen & Partners acted for the underwriters. ICBC’s IPO is a success on multiple levels. With US$21.9bn raised, it is the largest IPO in the world to date, and was the first simultaneous A-share and H-share offering, setting
30
►► Financial sector leads in outbound M&A
After domestic banks cleaned up their balance sheets, took on foreign investors and conducted IPOs, they went on a buying spree in other countries. Some of the more notable acquisitions over the past few years include China Merchants Bank’s takeover of Hong Kong bank Wing Lung for US$4.6bn, ICBC’s US$5.5bn acquisition of 20% of the shares in South Africa’s Standard Bank and Minsheng Bank’s purchase of up to 20% of shares in US bank UCBH Holdings
a precedent for future offerings of this kind. More importantly, becoming a publicly listed company has broadened ICBC’s international shareholder base, brought a wealth of opportunity for international expansion and brought about fundamental changes to its inhouse legal department. “The renowned success of the listing was the best reward possible for everyone in the team, who put in a great effort and worked very hard,” said Zhang. “It also marked a turning point for the legal department. Since the company went public, the size of the department has doubled and its standing in the company has been elevated substantially.” Zhang now manages the legal department of ICBC’s head office, which consists of 40 legal staff in six teams that are responsible for different legal duties. He also oversees the legal departments in 38 provincial-level branches and many subsidiaries. In total, there are over 1,400 legal staff in ICBC, but the number seems not to be enough in a bank with total assets of US$1.3trn that has over 20,000 outlets at home and abroad, offers 3,000 products to both individual and corporate clients, and employs more than 360,000 staff. “The volume of work at the legal department grows by 40–50%
each year, but the headcount of our department hasn’t increased at the same pace. We feel a strong need to continue strengthening our team and upgrading the quality of legal staff,” said Zhang. Similar to the changes in the volume of work, the quality of work is also increasing. He noted that his team is actively involved in board meetings, the decision-making process, risk management and strategic planning. “Our in-house legal function faces new responsibilities, heightened expectations and unprecedented challenges in the increasingly sophisticated legal and business environment. We are also expected to make a value-added contribution to the business,” said Zhang. However, to meet the giant company’s legal needs, Zhang has come to realise that a good mix of in-house and external resources is essential. “We are considering additional outsourcing, especially certain types of routine legal work. The cost and value differentials between in-house and external counsel are most effectively managed through outsourcing packages for routine, repetitive legal services that don’t require a deep knowledge of the industry, business operations, culture and strategy,” he said. Outsourcing clearly frees up in-house teams to devote more time ISSUE 6.1
FEATURE | in-house interview >>
Name: Zhang Wei Organisation: ICBC Position: Head of legal Industry: Finance Company turnover: US$37.4bn (2007) Market cap: US$173bn (RMB1182bn) as at 31/12/08 Total assets: US$1.3trn Total number of employees: 360,000 Total legal capacity: 40 in the Beijing head office; more than 1,400, taking subsidiaries and branches into account External law firms used recently: King & Wood, Herbert Smith, Davis Polk, Linklaters, Baker & McKenzie Education 1991–94: PhD, Peking University Law School Work history 1994-2004: In-house counsel and then vice manager of the legal department, ICBC 2004–present: Head of legal, ICBC www.legalbusinessonline.com
31
FEATURE | in-house interview >>
►► ICBC cross-border transactions highlights Deal
External counsel
ICBC IPO
Legal advisers to issuer: King & Wood, Herbert Smith, Davis Polk Legal advisers to underwriters: Haiwen & Partners, Freshfields, Shearman & Sterling Legal advisers to acquirer: Baker & McKenzie and Hadiputranto Hadinoto & Partners Legal advisers to vendor: Makes & Partners Legal advisers to acquirer: King & Wood, Linklaters and Jorge Neto Valente Advogados Legal advisers to vendor: Johnson Stokes & Master Legal advisers to acquirer: King & Wood, Linklaters, and Webber Wentzel Bowen Legal advisers to vendor: Bowman Gilfillan
ICBC acquisition of Halim Bank Indonesia ICBC acquisition of Seng Heng Bank ICBC acquisition of Standard Bank
to sophisticated, business-critical legal work. However, external counsel are preferred when cutting-edge legal knowledge and a broader market perspective are required. Some examples include complex litigations, investigations, transactional work and international work where the legal department lacks a presence in or knowledge of the local jurisdiction.
Navigate global expansion
Shortly after the listing, Zhang and his team had a busy two years providing legal support and advice on the company’s strategic acquisition and expansion overseas. In the past two years, ICBC has been ahead of other domestic banks in the race for overseas M&A. It has successfully acquired stakes in foreign banks, such as Indonesia’s Halim Bank, Macao’s Seng Heng Bank and South Africa’s Standard Bank. At the same time, the legal department has assisted the bank in opening new subsidiaries and branches in foreign markets, including Moscow, Sydney, Doha, Dubai and New York. Zhang believes that leveraging international firms’ resources, experience and expertise is a key element for effectively closing the deals and safely managing the risks involved in taking a domestic Chinese company onto the global stage. “International counsel are increasingly instructed to help inhouse departments bridge gaps in capacity and expertise in high-stakes 32
transactions in foreign jurisdictions,” he said. “Their specialist expertise, market knowledge and resources are valuable to the strategic development of globalising companies.” In light of the establishment of ICBC’s Sydney branch, the legal department’s selection panel appointed Mallesons Stephen Jaques – a top-tier Australian firm that has offices in Beijing, Shanghai and Hong Kong – to provide local legal services. “When our panel is selecting external counsel for a certain project, we won’t only look at firms’ track records and expertise in similar types of transactions; we also find out what resources they would be dedicating to our project and how efficient they would be,” said Zhang. With ICBC becoming an increasingly global bank, its legal departments are facing many new challenges it has not encountered previously. Meanwhile, the new challenges reflect that the role of in-house is now more important than it has been previously. Zhang gave insight into his legal department’s new multi-jurisdictional approach: it has to understand the legal environment and regulatory framework of each jurisdiction that its companies operate in, and ensure that the companies comply with these; it must assist its companies to manage an increasingly sophisticated array of multijurisdictional legal risks and issues; and it must prevent a legal matter in any jurisdiction from developing into a worldwide public relations crisis.
Value (US$m) 21,900
Time October 2006
n/a December 2006
583
5,500
August 2007
October 2007
The post-Lehman world
The global financial crisis, – particularly the dramatic collapse of the revered Lehman Brothers, which acted as financial advisor to ICBC in its IPO – has shaken ICBC’s senior management as well as its legal department. At the time, ICBC held US$151.8m worth of bonds related to Lehman. Although the bank reported that its mainland and overseas branches would not be strongly affected by Lehman’s bankruptcy, its legal department’s workload increased. “We were one of the first departments the executive board contacted after receiving the news,” said Zhang. “The legal department has worked closely with other business arms to keep the loss to a minimum.” Most major banks in China are studying the Lehman case and trying to learn from its demise, ICBC included. “With failed strategies, Lehman’s failure was inevitable, regardless of whether it had an excellent legal department or not,” said Zhang. “But legal departments undeniably play an important role to help keep banks afloat amid a crisis. Domestic banks will heighten scrutiny of risk and the importance of compliance, especially when they provide structured finance products and derivatives.” With the global financial crisis deepening and having a continuing negative impact on the domestic economy, Zhang and his team may have a year ahead that is even busier than the IPO year of 2005. ALB ISSUE 6.1
TOKYO
SINGAPORE
BEIJING
28 MaY, 2009
10 SEPtEmbER, 2009
19 NovEmBEr, 2009
Asia’s most respected monthly legal magazine Asian Legal Business (ALB) is proud to present ALB In-house legal Summit Shanghai on 15th May, 2009. This special one-day legal event is tailor-made to bring together leading private practice lawyers and senior in-house counsel. The summit represents a fantastic opportunity to address some of the most active and influential corporate counsel and business leaders in Asia today. The focused practice area workshops, plenary sessions and panel discussions provide a unique platform for the frank exchange of views, sharing of best practices and formation of strategies to best deal with change in 2009.
HOW YOU WILL BENEFIT AS A PRESENTER AT ALB IN-HOUSE LEGAL SUMMITS 2009 •
Increase your business – showcase your firm’s expertise to an audience active in business strategy and specifically interested in your practice area
•
Create relationships with new clients – update delegates on the latest practice area developments at dedicated workshops
•
Raise your profile – network with the region’s top influential in-house counsel
•
A dedicated team ensuring the right audience – Our team is committed to inviting key in-house legal professionals and senior business leaders
•
Broaden your exposure – receive exposure to an audience of more than 40,000 in-house counsel and private law firms via Asian Legal Business (ALB) and Australasian Legal Business magazines, and on www.asianlegalonline.com, www.theinhousesummit.com and regular e-newsletters
•
Achieve maximum ROI from your affiliation with this event
TO FINd OUT MORE ABOUT PRESENTING AT ALB IN-HOUSE LEGAL SUMMITS 2009 cONTAcT: JOEL ULBRIcHT, Business Development Manager +852 2815 5988 joel@kmimail.com +852 6120 4130 ALB enjoys alliances with the following organisations
Workshop Sponsor
Official Media Partner
ALB ASIAN LEGAL BUSINESS
Another event organised by
FEATURE | 2009 predictions >>
What will the Year of the Ox bring for the legal profession? What impacts will the financial crisis have on law firms’ results in 2009? How will client demands change? ALB China asks nine legal experts this new year to predict trends in nine different practice areas
A
year full of surprises and unexpected turns for the business community sums up 2008. Law firms and in-house legal departments found themselves dealing with issues they could not have predicted. In line with the country’s economic development, many law firms experienced a slow-down in growth and only a number of them hit the revenue targets they set at the beginning of 2008, when the market was still bullish. As the Chinese New Year draws near, the legal fraternity are leaving the past year behind with mixed feelings
and welcoming in the new one with cautious optimism. Although there is uncertainty still in the air and the impact of the unprecedented global financial crisis is likely to continue throughout the entire year of 2009, law firms are hoping for the best and recognising that opportunity can come from crisis. A panel of legal experts, specialising in different areas, has come together to give their unique take on the pipeline issues and how things will pan out in the legal market. According to our experts, each sector and practice area – such as
►► ALB China: Year of the Ox predictions panel Anti-monopoly: Alex Potter, partner, Freshfields Bruckhaus Deringer Banking & finance: Liu Dali, partner, Jun He Capital markets: Yan Yu, managing partner, Jia Yuan Law Firm Dispute resolution: Gary Seib, Dispute Resolution Practice Group in the Asia-Pacific, Baker & McKenzie Infrastructure: Wang Jihong, partner, V & T Law Firm M&A: Yang Xiaolei, partner, King & Wood Private equity: Jonathan Zhou, partner, Fangda Partners Real estate: Zhang Xuebing, managing partner, Zhong Lun Recruitment: Frazer Xia, founder and managing director, China Legal Career 34
M&A, IP and banking & finance – will present legal professionals with a distinct set of opportunities and challenges. IPOs and private equitydriven deals may continue their downward trend, but restructuring, bankruptcy and litigation could help cushion the drop-off in transactional work. Emerging practices, such as anti-trust, are expected to produce groundbreaking work implementing new legal developments. The RMB4trn (US$586bn) economic stimulus plan is anticipated to help restore the confidence of investors in the infrastructure sector and stimulate demand for relevant legal services. Inhouse legal teams will be stretched due to reduced budgets for external legal services, and it is possible that the legal recruiting market will be tight. No matter what 2009 has in store, it will be a year of adjustments and hard work. Firms that embrace the changes will be best equipped to weather this storm. ALB China wishes all the law firms and in-house teams success in the year of the golden ox. ISSUE 6.1
FEATURE | 2009 predictions >>
Anti-Monopoly Alex Potter
partner, Freshfields Bruckhaus Deringer Enforcement landscape of competition law will take shape Level of merger notifications to pick up
I
f 2008 was the year that comprehensive competition law finally came to China, 2009 will be about how the enforcement landscape of Chinese competition law takes shape. We can expect to see the first signs of real enforcement activity from the three government departments that together constitute the new Antimonopoly Enforcement Authority (AMEA) and, following early signs of a readiness by private litigants to bring civil actions, from the courts. Uppermost in the thoughts of those subject to the law will be questions about whether the system for investigations of both mergers and anti-competitive conduct will be designed in a pragmatic and transparent way, and whether analysis will focus on ‘pure’ competition law issues or whether the authorities will succumb to the temptation to use the Anti-Monopoly Law (AML) as an additional instrument to achieve industrial policy goals. At the AMEA, the Ministry of Commerce (MOFCOM), State Administration of Industry and Commerce, and National Development and Reform Commission are all drafting and consulting on guidelines to fill the many gaps left by the high level nature of the AML. MOFCOM has already shown a willingness – in the clearance of Inbev’s
acquisition of Anheuser-Busch – to use its new powers to require merging parties to give undertakings in order to obtain an approval, albeit that the undertakings given indicated that MOFCOM chose to use the occasion to put down a marker about potential future consolidation rather than evidencing concerns about the deal which was under consideration. Thus far, the number of merger filings under the new law has been relatively low, and there are already some rumblings of discontent that not enough deals are being caught. Notwithstanding the economic downturn, I would expect to see merger notifications level pick up in 2009: the filing thresholds are low and, even at a time of muchreduced global M&A activity, will be triggered by relatively small investments into China. Increasing awareness of filing obligations by domestic businesses should also contribute to MOFCOM’s workload. The other two limbs of the AMEA are reported to have already received complaints about anti-competitive conduct but are thus far biding their time. Reflecting a balance between ensuring that they are ready and wishing to send a clear signal that they mean business, I would think that 2009 will see the first signs of these agencies opening
formal investigations against companies accused of infringing the law. Perhaps the most surprising feature after enactment of the AML was the willingness of private litigants to bring actions against both government departments and stateowned enterprises. The first of these cases – reported to be lodged on 1 August 2008, the very day that the AML came into force – was dismissed rapidly, but may be appealed. Other cases are still progressing through the system, and we will over the course of the year begin to get a feel for whether the courts will seriously entertain cases brought against significant state-owned businesses. The early signs are that complaints about abuse of dominance may form a greater proportion of civil actions than would be typical elsewhere. As both the authorities and courts gear up, it will become increasingly important that businesses operating in China are able to combine technology from knowledge of competition law enforcement in more mature jurisdictions with a detailed understanding of the system that operates in China, and how the AMEA and courts are likely to react to what for them will be novel enforcement issues. The Year of the Ox promises to bring a voyage of discovery.
Banking & finance Liu Dali
partner, Jun He Bank IPOs and local incorporation of foreign banks will decrease sharply Opportunities lie in infrastructure project finance, acquisition finance, REITs and debt restructuring
T
he year 2009 will see a very promising market in the banking & finance area of legal practice, though it will still be in the midst of a serious global economic crisis. Financial institutions in China are not as seriously impacted by the current global economic crisis as their counterparts in the US or Europe. Although the slow-
www.legalbusinessonline.com
down in GDP increase will always be accompanied by an increase in nonperforming loans, it seems this will not be material as the growth rate of China’s GDP will still remain over 8% annually. Bank IPOs and the local incorporation of foreign banks will decrease sharply in 2009. However, the market will still see IPOs of Chinese banks.
The Agricultural Bank of China will launch its IPO in 2009. China Development Bank and China Minsheng Banking Corporation Limited are also likely to start their IPOs. Lawyers will compete strongly for such deals. There will still be a few local incorporations or foreign bank investment cases in 2009. Experienced
35
FEATURE | 2009 predictions >>
lawyers in this area will be engaged for these deals. New opportunities for lawyers will most likely be in the following areas: infrastructure project finance; acquisition finance; REITs; and debt restructuring. China’s central government has announced a RMB4-trn fiscal stimulus plan. Local governments have been reported as having further enhanced this figure to RMB18trn. A large part of such investments will go to the infrastructure industry, which will trigger a large number of bank loans. On 6 December 2008, the China Banking Regulatory Commission issued the Guidelines on Risk Management of Acquisition Loans of Commercial Banks, which allows banks to fund share acquisition deals. The economic crisis has caused a falling market, which creates the best chance for M&A. Several of the
Chinese big five banks have announced acquisition finance will be a major product in 2009. The government is trying to prevent the real property market from undergoing a severe downturn. The State Council named the introduction of real estate investment trusts (REITs) as one of the major measures to stimulate the market in its 2009 plan. The market has been waiting for many years for REITs. Various REITs are expected to be launched with the support of the government in 2009. With more and more industrial corporations affected by the global economic crisis, the rate of non-performing loans of banks will inevitably increase in 2009. A new debt restructuring market will emerge in 2009.
“The economic crisis has caused a falling market, which creates the best chance for M&A. Several of the Chinese big five banks have announced acquisition finance will be a major product in 2009” Liu Dali, Jun He
Capital markets Yan Yu
managing partner, Jia Yuan Law Firm Although outlook not unduly pessimistic, conservative approach needed in months ahead Debt capital markets practice will be active
L
ike the US and European stock markets, the A-share markets also suffered a steep decline from the end of 2007, dragging the average PE ratio to a historically low reading. However, the decline in China’s capital markets was reported to be a correction from the over-inflated stock bubble, while the financial tsunami in the West is due to the sub-prime crisis and credit squeeze. Nevertheless, the adverse market conditions have caused many companies to postpone or even withdraw their IPO plans. One thing for certain is that most companies still have the need to raise money for their operations or expansions. We also noticed that, in early December, the State Council launched a RMB4bn economic stimulus package. Thereafter, PBC, CSRC, CBRC and the Administrative Office of State Council promulgated a series of incentives and encouraging policies and regulations with a view to
36
providing more channels through which companies can raise capital. With the understanding gained through the above observations, we may expect that the need for legal services related to bonds issuance, M&A and bankruptcies will become stronger in 2009. Debentures are always considered an alternative for companies to raise capital when the cost of equity is expensive, explaining the phenomenon that the bonds market has held steady for several months. Historical data shows that in a bear market, M&A increases because the cost is much cheaper due to the low share price. In addition, many bankruptcy cases have been filed in courts in the past few months, and there would be more should the economic conditions continue to deteriorate. Overall, we have a more conservative prediction about corporate financerelated legal services.
Yet it is not unduly pessimistic, as we can still see the opportunities for IPO substitutes in the markets, even if the outlook for IPOs remains gloomy for a while. However, legal counsel need to be up to date on new laws and regulations in order to keep abreast of the constantly changing market needs. This way, they will not be left behind.
ISSUE 6.1
FEATURE | 2009 predictions >>
Dispute resolution Gary Seib
Dispute Resolution Practice Group in the Asia-Pacific, Baker & McKenzie Further increases in the use of the courts Arbitration will continue to be very active
D
ispute resolution – in its variety of forms – is a growth area in China in 2009, continuing the trend we have seen over recent years. We will see further increases in the use of the courts for the resolution of commercial disputes and the enforcement of commercial rights. Alternative dispute resolution techniques – most particularly arbitration – will also continue to be very active, as will calls on the skills of dispute resolution lawyers and those in some other practice disciplines in the field of compliance – in training, establishing programs & policies and, ultimately, in internal investigations and enforcement. There are several factors underlying these trends: law reform; increasing reliability of and confidence in mainland courts, tribunals and arbitral bodies; and, more recently, the impact of the financial crisis. There are also some ‘non-cyclical’ drivers of activity, for example, the increasing emphasis on and enforcement of domestic and ‘long-arm’ compliance and anti-corruption laws, both in China and elsewhere, plus information sharing between regulatory and enforcement authorities across the world – both of which have led to increased awareness of these issues in developing jurisdictions. The focus is starting to shift in China to enforcement against bribe-payers, not just recipients. We have seen significant legislative reform in key areas of commercial law – Company and Securities Laws, Enterprise Bankruptcy Law and Anti-Monopoly. The latter, in particular, is both important and brand new – the application and enforcement of China’s new Competition Law will be a key issue, although this may be constrained to some degree by the current financial crisis, as the number and size of transactions are likely to diminish year-on-year in 2009. In the corporate law sphere, we will see an acceleration of what Baker
www.legalbusinessonline.com
& McKenzie views as an already discernible trend – shareholder and securities litigation. Interpretations issued by the Supreme People’s Court in 2001 and 2003 limited the recourse that shareholders had to the courts. Over the past few years, this has changed in favour of the protection of shareholders, for example, through the CSRC’s Provisions on Strengthening the Protection of the Rights & Interests of the General Public Shareholders issued in late 2004, and the new Company Law and Securities Law, each of which took effect from 2006. While there are (relatively) few cases under the new laws, and several still pending, the increasing incidence of shareholder litigation is evident – often (but not exclusively) following from CSRC action. The Enterprise Bankruptcy Law came into play two years ago and is likely to be actively utilised in the current market conditions. There remains a sense, particularly among foreign creditors, that there is yet to be a completely level playing field in terms of creditors’ rights in practice – with self-help and individual creditor action still seen in ways that are not elsewhere evident. This remains a challenge as experience in the application of the new law by the courts develops. Product liability will also inevitably be a focus. Recent incidents have been high profile and cross border – the business is global and so are the exposures. This serves to highlight a further trend that we have seen, namely the exposure of Chinese corporates to outbound litigation risk. We have seen it in antitrust, product liability, energy & mining and other areas, not only before US courts but in other jurisdictions as well. As direct foreign investment by Chinese corporates continues, the exposure to outbound litigation must grow. This can often come as an unwelcome and hugely challenging issue, particularly in Common
Law adversarial systems. For example, discovery obligations and deposition procedures, with sometimes onerous penalties for non-compliance, are often outside the experience of mainland litigants. Mainland corporates can view the process as hostile and utterly unfamiliar. Working with mainland clients and navigating these uncharted waters is a key value-added proposition for litigators. We will also see still-increasing numbers of arbitrations before mainland arbitral bodies, most especially CIETAC. International arbitrations in the region involving mainland entities will also be very active, not least following from the ICC’s establishment in Hong Kong. The HKIAC, SIAC and other tribunals will also continue to be busy, as parties often prefer to resolve disputes through arbitration over litigation in the mainland. This preference may be impacted to some extent (and over time) by another recent and important reform – the reciprocal recognition and enforcement of judgments between the courts of Hong Kong and the mainland. Arbitral awards have been recognised for some time. However, this arrangement came into effect in August 2008 and, although its application is subject to a variety of conditions, its importance cannot, in my view, be underestimated. Through it, foreign parties contracting with mainland entities may see some juridical advantage in agreeing to resolve disputes exclusively through the courts in Hong Kong. Firms need to be global in their perspective and reach, and locally savvy. The management of disputes, inbound or outbound, typically is transnational. Litigators and arbitrators need to work across borders, and deliver a fluent and seamless client service if they are to help clients manage these rights, risks or exposures.
37
FEATURE | 2009 predictions >>
Infrastructure Wang Jihong
partner, V & T Law Firm Government stimulus package to stimulate more transactions Increasingly sophisticated projects require full-service firms with strong infrastructure practices
I
n the face of the economic crisis, the central government has released a RMB400bn investment plan for infrastructure to maintain the GDP increase rate of 8%. As a result of the stimulus plan, the legal service market in this area will remain buoyant. However, in order to reach the target economic growth rate, the investment of RMB400bn is not enough. Take 2006 as an example: GDP growth reached 9% when the investment in the infrastructure area amounted to RMB900bn. There is no doubt that the 8% increase will rely on a great amount of domestic and international floating capital. Such capital entering China under different names and from various channels will promote active transactions, including equity transfer and acquisition. In the aforementioned course, the PPP legal service should be affected the most. Major infrastructure projects in China such as expressways, water plants, sewage
treatment plants, subways, light rail, bridges, ports and docks are undertaken by way of concession and implemented by legal practitioners through public bidding or competitive selection. As China does not have unified legislation in concessionary operation, much negotiation space is left to the government and investors and creates an arena where lawyers of both parties can play their role. However, there are not enough lawyers with expertise in this area. The persisting heat in the infrastructure area will, in a sense, lead to the integration of legal teams and law firms. An infrastructure project has many facets that need legal input, such as project financing, syndicated loans, negotiation of concession contract, acquisition of land use rights, project construction, real estate project development combined with infrastructure building, listing after project completion, and involvement of privately offered funds. It is very difficult for individual
lawyers to work on all of these; only strong professional teams of lawyers are capable of doing so. This will have two results: first, it will push lawyers to update their practices and skills; and, secondly, integration among law firms will be proposed. As a result, only full-service law firms with specialised expertise can win contracts and come out in front. In addition, the sustainable development in infrastructure will give rise to a surge of legislation in related fields. To promote the smooth operation of infrastructure projects and effective protection of the legal rights and interests of the parties to the contract, there is an urgent need for China to issue regulatory documents and establish legal systems – such as land, tax, insurance and guarantee systems – to address the needs of infrastructure projects. This also means that the existing legal systems of relevant practice areas need to be revised and adjusted as soon as possible.
Intellectual property Lian Yunze
partner, Hylands Law Firm Domestic demand to soar and drive further growth Financial hard times to help promote quality and efficiency of services
P
ublic awareness of Intellectual Property Rights (IPRs) has increased remarkably in the past decade. This will lead to a promising IP legal service market. IP boutique firms and IP practice groups in law firms have been expanding and growing in recent years. The demand for high-quality IP legal services will continue to rise rapidly in 2009, despite the global financial tsunami. In the current market conditions, it is clear that many foreign companies
38
may not have the same ability and willingness to fund R&D, technology transactions and complex IP litigations in China as they had a few years ago. So the prosecution and enforcement of IPRs by foreign companies may be less active. However, driven by the substantial adjustment of national industrial development policy and the national IPR strategy, the prosecution and enforcement of IPRs of both Chinese enterprises and individuals, in China or abroad, will continue and create more work for law firms.
China has entered a new era of developing a knowledge-based economy in which IPRs are regarded as the core assets. IPRs also provide market competitiveness. Domestic companies are encouraged to create, implement and protect their own IPRs, increase the number of patent applications and grants of patents, foster internationally recognised brands, promote the copyright industry and protect various other types of IPRs. At the same time, the legal services market will be increasingly competitive and only firms that can provide ISSUE 6.1
FEATURE | 2009 predictions >>
high quality services can survive in the market. In the past few years, the threshold of market entry of IP legal services, especially for trademark matters, was lowered, resulting in severe undercutting in pricing in the market. Some small IPRs services providers, whose businesses had low prices and poor quality, will face a particularly hard time. Due to the economic downturn, clients want to spend every penny effectively and efficiently, which will
M&A
result in the promotion of service quality in the whole market. We believe that the fierce competition and the financial crisis will shake up the industry, and high quality IP agencies and law firms will occupy a dominant position.
“The demand for high-quality IP legal services will continue to rise rapidly in 2009, despite the global financial tsunami” Lian Yunze, Hylands Law Firm
Yang Xiaolei
partner, King & Wood M&A activity may rebound after first quarter of 2009 PRC firms to play a more important role in cross-border transactions
S
ince the financial crisis, which started in Wall Street in September 2008, has spread quickly into other countries around the globe, the M&A market in the PRC has undergone a sharp decrease in activity. Under the basic assumption that the impact of this unprecedented crisis may last for all of 2009, the M&A market would be seeing the following events or situations: • A number of enterprises would be confronted with problems in maintaining their financial chain, which produces a greater likelihood of M&A deals taking place. However, clients may opt for acquisitions which would help in integrating the industry chain, adjusting products structure and upgrading their own overall competitiveness • In terms of the policy of PRC government, the PRC regulators will encourage M&A deals by providing encouragement through taxation, loosened fund-raising channels, and flexible and variable consideration payment measures, such as share swap or consolidation, or a combination of different types of consideration
www.legalbusinessonline.com
• Lower prices and costs in M&A deals would also encourage PRC regulators to continue their policies in backing up domestic enterprises for its overseas investment and M&A. Such governmental support will facilitate overseas M&A in terms of increasing the number of deals and improving the possibility of success • Echoed with the market participants’ gradual adaptation to the financial crisis and the decreasing of mental panic, the M&A market will gradually recover its vitality after first quarter of 2009 In 2009, clients in M&A deals may have new requirements for legal services, including the expectation that PRC lawyers will provide a legal service with more detailed and thorough legal due diligence and effective contractual terms to reduce potential legal risks. Those PRC lawyers who provide a legal service in overseas M&A should be able to work in English or another foreign language, and also possess more international practice and legal training and qualifications in relevant fields, while being equipped with an in-depth understanding of the operations and needs of our domestic clients.
Furthermore, clients may rely on their PRC legal counsels to create a costeffective acquisition structure, seek an optimised channel of fund-raising and even provide acquisition opportunities for the client. To cope with the changing demand of clients, PRC lawyers will need to study: the new market development; the purpose of the governmental policy; the expectations and business purposes of the clients; and relevant international practice and law so as to design acquisition structures compatible with the new economic environment in the PRC. For instance, PRC lawyers may need to research the market of M&A deals involving listed company or foreign investors.
39
FEATURE | 2009 predictions >>
Private equity
Jonathan Zhou
partner, Fangda Partners Legal advisers to private equity firms will have far fewer billable hours in the first half of 2009 Opportunities may arise since valuations are being adjusted downward significantly
T
he ongoing financial turmoil and possible global economic recession will certainly have a deep impact on the private equity industry as well as its advisers. From the last quarter of 2008, it has become evident that private equity transactions have been hindered by the tight credit market, capital market volatility and general economic uncertainty. Investors are becoming more and more cautious when making investment decisions in the current climate. As a result, M&A in general and private equity buyouts in particular are likely to slow down in the first half of 2009. On the other hand, compared to hedge funds, private equity firms are relatively less exposed to the financial market meltdown. Limited partners have committed their money for a longer period. Though it is a significantly lower amount than that raised in the same period in 2007, US$43bn was
raised by private equity firms in the fourth quarter of 2008, according to The New York Times’ Deal Book on 9 January 2009. Opportunities may arise, since valuations are being adjusted downward significantly. Leading private equity firms may continue to outperform traditional investment managers and may even strengthen their positions as less competitive private equity players are squeezed out. China is seen by many as the hope behind an early rebound. Historically, larger buyout funds have been relying more on their limited partners’ funds and less on borrowed money. Therefore, their China investments are less impacted by the tight debt market. In the meantime, given the relatively small size of the China deals, it would be easier for private equity funds to make investment decisions since these deals are generally far less significant than those made in the US and Europe. It would
be reasonable to expect that once the market stabilises, the volume of private equity activity will increase. Legal advisers to private equity firms will have far fewer billable hours in the first half of 2009, due to reduced deal activity. However, firms with strong restructuring, corporate governance dispute and distressed asset acquisition practices will have more opportunities since clients are expecting more sophisticated advice and the deal structure may no longer be plain vanilla growth capital deals as once was the case in China. Clients may also shift their strategies away from ‘buying in anticipation of a quick IPO’ towards maintaining their investments in companies for much longer periods and turning around the business when the credit circle turns. Since clients are getting more hands-on with their portfolio companies, counsel will be often sought for advice on post-closing matters.
Real Estate
Zhang Xuebing
managing partner, Zhong Lun Transactional work in the sector will decrease in the near term Issuing bonds could become the key source of financing
I
n light of the global financial crisis, Beijing may ease restrictions on foreign investments into its property market. Foreign exchange restriction could also be relaxed. So the market for real estate legal services could be correspondingly restored. Deals including M&A and large-scale property transfers may increase. At present, many industry players still think highly of China’s huge long-term market potential, but are waiting to re-enter the market at its bottom. However, in view of the bleak outlook for real estate, and uncertainty over fundamental valuations, industry players could maintain their wait-and-see attitude. It is estimated that construction for real
40
estate projects might see a revival by the middle of this year and only then can related services also pick up steam. Much of the existing foreign investment in China’s property market is also debt financed, or has investment return hurdles. Should rentals become insufficient to service debt or fulfil investment interest, there will be some liquidation activity. Issuing bonds could become the key source of real estate financing. At present, real estate companies may stand only a slim chance to receive approval for additional share issuances, while corporate bonds issuances have increased steadily. Before the recovery of the stock market, bond
issuances will provide real estate companies with a continued source of financing. Litigation and arbitration cases will increase. With credit tightening, existing deals, especially equity-financed and asset-financed deals, may sour and lead to legal disputes. Real estate attorneys should be prepared to weather the market and monitor regulatory developments. The demand for legal services in property acquisitions, transfers, IPOs and financing transactions will decrease in the near term. Before the market recovers, legal services activity will focus around the day-to-day operation of commercial properties, such as maintenance contracts and rental contracts. ISSUE 6.1
FEATURE | 2009 predictions >>
Recruitment Frazer Xia
founder and managing director, China Legal Career Good time for firms with tight budgets to upgrade their teams Redundancies will be minimal, but chances for pay rises will be slim
T
his year will see further reductions in legal recruiting opportunities. Except for a few newcomers to the market from the US and the UK, existing foreign and even local law firms will continue to cut expenses to avoid redundancies and adjust their teams in China to the right size. A ‘wait-and-see’ mentality is the tone of the market at least for the first quarter of 2009. Capital markets and real estate attorneys will either be let go or retooled to work on M&A or even FDI deals if they are lucky enough to have that chance. There are some blessings, though. For one, some clients are taking advantage of this special market situation to upgrade their teams so with the same budget they can now put a better team under their belt. Another interesting phenomenon, observed from our 20 years’ experience in legal recruiting, is that partner search, contrary to common understanding, will be more active, especially for those who carry a book of business.
www.legalbusinessonline.com
Attorneys in the M&A and private equity practice areas should not worry too much about losing their jobs, while the safest practice areas will include employment, litigation, distressed assets, restructuring and bankruptcy. The in-house side will see similar patterns and mentality. The financial crisis will trickle along the food chain to slow down many industries including automotive, shipping, and high-tech. Some in-house openings will emerge, especially for mid- to senior-level inhouse counsel with a high degree of independence. The market will further localise to hire more local talent, partly as an attempt to reduce costs on top of being more effective. It will be more a buyer’s market in 2009, so it will be unrealistic to expect any salary hikes. Candidates will set their eyes more on guaranteed payment, rather on target bonuses or long-term incentives when company performance is a big question mark. Candidates will be more cautious when switching jobs, though some would actively look
for a change if they happen to be in a precarious industry. One uncertainty, though, would be to what extent MNCs would turn to China’s markets for a solution when their home markets are experiencing larger troubles. It is very likely that many more will come to this market, as a better option among other choices. General counsel will need to be prepared for more hands-on work when their applications for headcount in 2009 are frustrated.
41
Feature | ALB China Watchlist >>
CHINA
The firms to keep your eye on in 2009 Of the many newly established partnerships, some have achieved outstanding results and demonstrated their potential to shake up the market. ALB China identifies the 10 rising stars worth watching in the years ahead
“T
he four stages of man are infancy, childhood, adolescence and obsolescence,” quipped American author Art Linkletter. Man, perhaps. China’s law firms definitely not. The legal industry is in its adolescence – not mature yet but full of immense potential and showing great promise. It is at a stage in which motivated and ambitious partners of firms start to identify their own niches, find their own ways of how to
►► 2009 ALB China Watchlist* Han Yi Law Offices
瀚一律师事务所
Hylands Law Firm 浩天信和律师事务所 Jin Mao Partners 金茂凯德律师事务所 JinchengTongda & Need
金诚同达律师事务所
Martin Hu & Partners 胡光律师事务所 MWE China Law Offices
元达律师事务所
Run Ming Law Office
润明律师事务所
Sloma & Co 四维乐马律师事务所 Zhong Yin Lawyer
中银律师事务所
Zuo Quan Law Firm
左券律师事务所
*Firms listed in alphabetical order
42
best fit into the dynamic and everchanging market, and draw on their past experiences to establish goals for future success. In the past two years, particularly as the market was still buoyant and corporate work and cross-border transactions were easy to come by, a large number of new partnerships were forged. While law firm merger activity continues to be strong, a new trend has emerged in the legal sector in recent years – the sprouting of a large number of new firms in the market. These firms are founded by partners from other firms – always senior partners, sometimes founding partners – after they withdraw from their previously established partnerships. Law firm mergers can be driven by various strategic objectives: geographical expansion; the addition of a specialised practice area; and access to bigger and better clients, and more sophisticated work. As in any industry, consolidation marks one aspect of marketplace maturation. However, the main cause of the recent split-offs is the ambition of some senior partners to adopt a good law firm management structure. They
have realised that good management practices are essential in order to deliver consistent, high-quality legal services across a range of specialised areas. This is a clear indication that the legal profession is increasingly diverse. And the increasing sophistication of management practices is another indicator of maturation. “The decision to establish a new firm is a response to changing client needs,” said Martin Hu, founder of Boss & Young, who left the firm to set up Martin Hu & Partners (MHP) in 2008. “As clients are growing bigger and doing more complex transactions, they increasingly require an integral team of lawyers specialising in different areas to deliver seamless, quality legal services.” Hu’s goal is to develop a law firm with a team-based approach, characterised by both a strong firm– client relationship and harmonious firm governance. The single biggest obstacle to teamwork in most local firms is the eat-what-you-kill business model that, in its purest form at least, gives no incentive for partners to cooperate and results in difficulties representing clients in large deals. ISSUE 6.1
Feature | ALB China Watchlist >>
MWE China is another notable firm in the ALB China Watchlist that has adopted an “all for one and one for all” approach to overcome this. It is noteworthy that it has achieved this fundamental change by means of forming an exclusive strategic alliance with international firm McDermott Will & Emery (MWE), based in Chicago. MWE China’s founder John Huang, who also founded AllBright in 1999, noted that the alliance has been a success, with significant growth in his firm’s revenues and headcount since its establishment. “The strategic relationship with our US partner enables us to have the best of both worlds of local and international legal practices,” said Huang. Although MWE China and MWE remain two independent legal entities, they share the same standards for most aspects of the legal practices, including client service, quality assurance procedures and professional training programs, IT and telecommunications infrastructure, and management system. “Leveraging MWE’s international platform and management skills, we’ve become an international firm based in China. Our clients and lawyers benefit greatly from this strategic platform,” said Huang. “MWE’s clients from the US and Europe have also received quality PRC legal services delivered in an international manner.” Due to increased offerings and capacity in China under the arrangement, the total billable hours of MWE’s China practice has increased exponentially. Similar to the stories of MHP and MWE China, all of the firms on the ALB China Watchlist have managed to balance the often-competing concerns of ambition, risk and growth with pragmatism; they have identified their competitive edges and discovered that which separates them from the rest. If their results in the past few years are indicators, these firms are set to accomplish bigger and better things in 2009 and beyond. Whether it is pioneering new practice areas or management techniques, striking tie-ups or alliances, closing the big deals or poaching partners from their rivals, watch for these firms to play far bigger roles in the near future.
Hylands Law Firm • • • •
Managing partner: Liu Hong (chairman, management committee) Established in 2007 Headquarters in Beijing Founding based on a merger between Hao Tian and Li Wen & Partners
Formed on the basis of a merger between two firms established in the 1990s, Hylands has 29 partners and 117 qualified lawyers in offices in Beijing, Shanghai and Nanjing. The full-service firm serves a diverse local and international corporate client base, and enjoys a solid reputation in the practice areas where they have been traditionally strong, such as real estate, construction, IP and dispute resolution. Leveraging the new platform and its membership in Terralex, the international business group led by partner Jiang Jiang has experienced strong growth.
Jin Mao Partners • • • •
Managing partner: Li Changdao Established in 2008 Headquarters in Shanghai Founded by ex-partners of Jinmao
Nine partners of established Shanghai firm Jin Mao, including Mao Huigang and Li Zhiqiang, splintered off to set up a new practice named Jin Mao Partners in early 2008. The new firm primarily focuses on areas of corporate finance, capital markets, M&A and foreign investment and has an impressive following of local and international clients.
Han Yi Law Office
JT&N
• • • •
• • • •
Managing partner: Richard Xu Established in 2007 Headquarters in Shanghai Founded by ex-partners of Commerce & Finance and Jingtian & Gongcheng
Former partners with Jingtian & Gongcheng, Richard Xu and Hu Jun, and a former partner at Commerce & Finance, Hu Ji, founded Han Yi in early 2007. Several months later, the firm opened an office in Beijing. Now, with four partners and nearly 20 lawyers, the firm provides a range of corporate legal services, mostly involving transactional work. Although co-founder Hu Ji left the firm to join Haiwen’s Shanghai office last year, the firm continues to show notable strength in advising on private equity and M&A deals.
www.legalbusinessonline.com
Managing partner: Tian Yu Established in 2008 Headquarters in Beijing Founded through a merger between Jincheng & Tongda and NEED International
To forge a well-balanced law firm with expertise in cross-border transactions and international business, Jincheng & Tongda has merged with NEED International, creating a new brand, JT&N. The addition of the international practice group, headed by senior partner Lan Lan, significantly boosts the firm’s international offerings and adds new US and international clients to its business. The new firm is committed to taking its place as one of the leading home-grown international law firms.
43
Feature | ALB Watchlist >>
Martin Hu & Partners
Sloma & Co
• • • •
• • • •
Managing partner: Martin Hu Established in 2008 Headquarters in Shanghai Founded by ex-managing partner and founder of Boss & Young
Martin Hu left Boss & Young, which he founded in 1999 with other partners, to start a new firm. Determined to build a local firm with international management structures that can produce a consistently high standard of quality of legal services, he created the boutique firm that bears his name. Most of his clients followed him to the new firm. In addition to Hu’s extensive experience in providing corporate and M&A legal services to multinational clients, several new partners and lawyers have brought their expertise in areas of litigation, education, tax, IP and employment and labour to the firm.
Sloma & Co, traditionally a boutique maritime firm, has made the transition into full-service capability by merging with Shanghai firm Siway & Seaway. The merger boosted the number of its offices to five – Shanghai, Dalian, Shenzhen, Kunshan and Berlin. The revamped Sloma continues to focus on maritime-related practices, and is also developing practices in areas such as IP, corporate finance, foreign investment and international trade. The firm now has a total of more than 70 lawyers, including 14 partners.
MWE China Law OfficeS
Zhongyin
• • • •
• • • •
Managing partner: John Huang Established in 2007 Headquarters in Shanghai Founded by former partners of AllBright
Chief partner: Tang Jinlong Established in 2008 Headquartered in Beijing Founded through a merger between Zhongyin and Zhengtai
Two former rainmaking partners of AllBright, John Huang and Kevin Qian, have masterminded an exclusive strategic alliance with US firm McDermott Will & Emery as the basis for their newly founded local firm MWE China. Having the best of both worlds, the firm has grown significantly in size and revenue in its first two years, and has contributed considerably to the expansion and success of its US partner’s China practice. With a core focus on corporate and litigation matters, the firm impresses clients with its depth of local knowledge and internationally sound pragmatic advice.
On the same day as the new Law on Lawyers took effect in 2008, Beijing-based firms Zhongyin and Zhengtai announced their merger, which formed a new partnership under the name Zhongyin. Before the merger, both firms already had a strong reputation in capital markets and finance practices. The merger reinforces Zhongyin’s leading position on its traditional turf. It also allows the firm to expand its offerings in other practices, such as corporate, real estate, foreign investment, IP and dispute resolutions, benefiting its clients on the local and international scene.
Run Ming Law Office
Zuo Quan Law Firm
• • • •
• • • •
Managing partners: Wang Yadong and Liu Yi Established in 2007 Headquarters in Beijing Founded through a merger between Run Bo and a team from Jun Yi
Run Ming was established in 2007 as the result of a merger between Run Bo, headed by founding partner Wang Yadong, and a team of Jun Yi lawyers led by partner Liu Yi. Given the solid track record of both groups, the new firm instantly made an impact in Beijing and Shanghai. The past year has seen the firm strengthening its legal teams by hiring senior lawyers from leading domestic firms and international firms, and establishing new practices and expanding main practice groups. Its client base, mainly Fortune 500 companies and their portfolios and subsidiaries in China, is also growing steadily.
44
Managing partners: Yu Genrong and Li Ming Established in 2007 Headquartered in Shanghai Founded through a merger between Sloma & Co and Siway & Seaway
Managing partner: Yan Xizhong Established in 2007 Headquarters in Shanghai Founded by ex-partners from Co-effort
The year 2007 saw the establishment of the country’s first tax boutique firm – Shanghai Zuo Quan. The firm was founded by a group of experienced tax lawyers, led by partner Yan Xizhong, from Shanghai Co-effort. The firm now has four partners and a number of associates, providing ‘one-stop’ tax legal services in foreign investment, M&A, restructuring and liquidation, and corporate finance. Most of them are dual-qualified as lawyer and CPA.
ISSUE 6.1
FEATURE | Chinese New Year messages >>
Chinese New Year messages 46
ISSUE 6.1
FEATURE | Chinese New Year messages >>
全国工商联并购公会 王巍, 会长
万科企业股份有限公司 颜雪明, 法律部总经理
中国经济对全球发展 应该负有历史责任， 这种责任是在创新机 制，企业家精神和环 境保护上，也是在商 业道德，财务健全和 法律规则上．这一代 的中国本土律师在传 统复兴和全球接轨上 做出了重大贡献， 奠定了中国经济改革与开放的基础．《亚 洲法律杂志》是一个启蒙，交流和操作的 平台，希望这本杂志和它的读者群体能一 如既往地努力，推动中国并购市场和建立 和发展．
中国工商银行
张炜, 总行法律事务部总经理
希望《亚洲法律杂 志》继续关注和推动 中国法治建设，成为 中国公司律师的亲密 伙伴和良师益友。
上海中发电气（集团）股份有限公司 严治中, 法务总监
感谢《亚洲法律杂 志》一直以来对中国 工商银行及其法律工 作的关心和支持。值 此新年来临之际，我 谨代表中国工商银行 法律团队，祝愿《亚 洲法律杂志》、法律 界同仁及各界朋友们 在新的一年里事业 顺利、阖家幸福，祝福中国经济以及中国 法律服务事业在新的一年里继往开来、再 创佳绩。
中国平安保险（集团）股份有限公司 姚军, 集团首席律师
《亚洲法律杂志》 为大家提供了一个宝 贵的法律信息分享平 台，通过 这个平台， 我们共同交流信息， 分享经验，在交流和 沟通中收获的不仅仅 是知识，也有深厚的 友谊。值此新春佳节 来临之际，我谨代表 工作在全国各地的全体平安法律人员通过《 亚洲法律杂志》向一直关心、支持我们的各 界朋友致以真诚的感谢和节日的祝福，祝大 家牛年大吉，岁岁平安！祝愿《亚洲法律杂 志》新年跨越大发展！ www.legalbusinessonline.com
海内存知己，天涯若 比邻。我谨代表上海 中发电气（集团）股 份有限公司衷心祝愿 《亚洲法律杂志－中 国版》在新的一年里 越办越好，你们的成 功就是我们的骄傲。
凯文律师事务所
隆安律师事务所
徐家力, 管理合伙人 新年伊始，万象更 新，ALB在各界朋友 的支持下，走过了不 平凡的2008年。中 国法律界在过去几年 了有显著发展，更完 善更规范。而作为 始终重点关注国内 法律界的领先出版 物，ALB也一直在与 其共同成长进步。衷心祝愿ALB的所有读 者新的一年顺心而为，事事如意。
新加坡国际仲裁中心
葛黄斌教授, 中国区主任 牛年好运！祝福大家 在新的一年里，家庭 祥和，生活安逸，身 体健康，万事如意。
史密夫律师事务所
张诗伟, 合伙人
邓达信, 大中华区管理合伙人 亚洲法律杂志中国版 自办以来，一直致力 于中国法涉外方面实 务和专才的推广与宣 传，深耕细作，成绩 斐然。值此不凡之 年，衷心祝愿，亚洲 法律杂志及其读者新 年吉祥，赢得挑战！
新年伊始，万象更 新，本人谨代表史密 夫律师事务所恭祝大 家新春快乐，万事 如意．
47
FEATURE | Chinese New Year messages >>
DLA PIPER
Dr Liu Wei office managing partner, Beijing DLA Piper has achieved great success in the PRC both in practice and professionalism over the past year. We would like to thank our clients for your continued support and thank ALB China for being a quality publication providing informed, professional information about the legal services sector. On behalf of DLA Piper, we would like to wish the team at ALB China and its readers good fortune and a happy and prosperous New Year of the Ox!
Minter Ellison Wan Li partner, Shanghai
MALLESONS STEPHEN JAQUES
Larry Kwok managing partner, Beijing I would like to take this opportunity to wish ALB China and all its readers a prosperous and joyful Year of the Ox. Mallesons will continue to provide innovative and strategic legal advice for our clients and we look forward to sharing legal insights with ALB China readers in the coming year.
Harneys
Michael Gagie resident partner, Hong Kong
Minter Ellison is the largest law firm in the Asia-Pacific region. With an indepth understanding of the local market and how business is conducted in China, our lawyers in the Greater China region have been working with clients and business partners since the 1980s. In the Year of the Ox, we wish ALB China and its readers a happy and prosperous year.
Zhang Xuebing managing partner ALB China has played an important role in informing PRC legal professionals of the current developments in the PRC legal market and has provided an excellent platform for the exchange of ideas. Zhong Lun wishes ALB China even greater success in 2009.
Commerce & Finance Law Offices Dong Shuguang partner
With its in-depth insights, ALB China adds dimensions to China’s legal industry. This is a big plus for both our lawyers and clients. Commerce & Finance wish ALB China and its wonderful readers all the best in the year of 2009.
DeHeng Law Offices
Chen & Co Law Firm
LexisNexis CHINA
Congratulations to ALB China on its sixth anniversary. Deheng wishes ALB China a smooth and prosperous year with the lucky six. The world is focusing on China and, worldwide, lawyers on ALB China for its efficient, profound, practical and up-to-date information on Chinese laws and professional practice. To be, to be different, to be the best!
We appreciate ALB China’s informative and insightful coverage of the legal profession in Asia and look forward to its continued success. On behalf of Chen & Co. Law Firm and its staff in Beijing, Shanghai, and Hong Kong, I would like to wish ALB China and its readers a safe and happy holiday season and best wishes for a healthy and prosperous Year of the Ox.
ALB China has become one of the leading publications in the fast growing China legal industry by enabling the sharing and communications among the legal professionals. LexisNexis wishes ALB China readers all the best for 2009.
Wang Li managing partner
48
ALB China provides us with invaluable access to information on issues affecting law firms in the region. We wish ALB China and all its readers every happiness and success in 2009.
Zhong lun
Frank Chen managing partner
Aley Chan managing director
ISSUE 6.1
FEATURE | Chinese New Year messages >>
Han Kun Law Offices
King & Capital
ALB China is the best platform to serve the legal community in China. It is a great pleasure to read each informative journal of ALB China. Han Kun wishes ALB China and its readers a happy new year for 2009.
ALB China with its comprehensive and in-depth content focusing on the Asian legal industry has been a great connection between lawyers and enterprises. It is a high standard, professional magazine to read. At this time of the year, I wish ALB China and its readers all the best for 2009.
Charles Li partner
Hughes-Castell (HK) Ltd Katy Lang, managing director Doreen Jaeger-Soong, managing director
Hughes-Castell wishes ALB China and its readers a happy and prosperous 2009. Best wishes for a bull year in the Year of the Ox.
VINSON & ELKINS
David Blumenthal managing partner, Shanghai Xiao Yong co-managing partner, Beijing ALB China is essential reading for those who want to keep abreast of legal developments in China. On behalf of everyone at Vinson & Elkins, we would like to wish our friends and clients a happy and prosperous Chinese New Year.
Bing Meng managing partner
Eversheds
Peter Corne managing director Thanks ALB China for all your support this last year – we have been proud to present on antitrust at your very well-supported conferences. Hoping the Year of the Ox will bring our renewable energy clients a lot more “waste to energy” opportunities in China!
Hogan & Hartson
GIDE LOYRETTE NOUEL
ALB China helps Hogan & Hartson lawyers keep abreast of important developments in the Asian legal market. We wish ALB China and all its readers all the best in 2009.
At Gide Loyrette Nouel, we look forward to the opportunities and challenges that the Year of the Ox will bring and to more excellent coverage of the Chinese legal market from ALB China. We hope that the magazine and its readers will all enjoy a very happy and prosperous year in 2009.
Jun Wei and Steve Robinson co-managing partners of China offices
www.legalbusinessonline.com
Stéphane Vernay co-head, Beijing office and head, Hong Kong office
HaoLiWen PRC Attorneys Deming Zhao senior partner
I feel refreshed each time I read ALB China. It is like a family reunion celebrating the Chinese New Year, but in a ‘legal profession’ way.
CITY UNIVERSITY OF HONG KONG SCHOOL OF LAW
Professor Wang Guiguo dean & chair professor of Chinese and Comparative Law The City University of Hong Kong School of Law sends the worldwide readers of ALB China warm wishes for a prosperous Year of the Ox.
lovells
Robert Lewis managing partner, Beijing On behalf of Lovells and the Sino-Global Legal Alliance (SGLA), I would like to wish all ALB China readers a successful and prosperous Year of the Ox!
49
ALB special report | Korea 09 >>
ALB ASIAN LEGAL BUSINESS
50
ISSUE 6.1
ALB special report | Korea 09 >>
The Yellow Sea narrows In the midst of undeniably gloomy economic indicators, lawyers in Korea have plenty of cause for optimism. Business opportunities arising from this side of the Yellow Sea are among them. ALB China reports
I
t is the sediment washing down from the Huang He that gives the Yellow Sea its colour and name. And it is the economic miracle occurring on the western side of the sea that is giving the country to the east reason for optimism. The economic ties across the Yellow Sea have steadily increased over the past decade and will continue to strengthen, providing rich opportunity for business lawyers. Statistics show that bilateral trade between China and Korea has rocketed over the past 15 years. The trade volume between the two countries reached US$145bn by the end of 2007, an increase of nearly 300% from the US$50bn in 1992. South Korea had set up more than 30,000 enterprises in China by the end of 2007, representing an accumulated investment of US$35bn. The neighbouring countries are also actively seeking to forge a free trade agreement (FTA). According to a study by the state-run Korea Institute for International Economic Policy (KIEP), an FTA with China would boost Korea’s gross domestic product by up to 3.2 %, while China’s economy would grow an additional 0.6%. Riding the wave, a number of Korean law firms have established offices in China, including top-tier firms Lee & Ko, Shin & Kim and Bae Kim & Lee. Horizon Law Group is one of the newer entrants in the China market. It set up an office in Shanghai in 2007. Horizon Law Group’s previous China-related work comprised mostly outbound investment from Korea. One such deal was helping Daewoo Shipping establish a joint venture in China to build a shipyard valued at over US$100m.
www.legalbusinessonline.com
On the inbound side, the firm advised China Construction Bank when it established a branch office in Seoul. “We will just be building on our existing client base, which is mostly Korean, and hopefully we can expand to include other Asian clients,” said Sung-Ho Moon, partner of the firm. The competition between Korean firms in China continues to be strong. Bae Kim & Lee plans to open its second Chinese office in Shanghai within this year. “We were the first Korean law firm with an office in Beijing, and we would like to maximise our investment and experience here,” Kyu Sang Chung said. “Shanghai is one of China’s biggest cities, and with so many Korean companies doing transactions there we need to set up an office.” Even for firms without offices in China, demand for legal advice related to Chinese investments continues to expand. Hee Chul Kang, a partner at Yulchon, says that his Korean clients are showing more of an interest in China. “Although partly motivated by the poor state of things in Korea, our clients are looking more to China,” he says, suggesting that the trend of Korean companies using China as an export base for their EU and US operations is shifting,” he says. “The mentality of clients setting up in China has really changed. They are starting to look at China as their home market, an independent market that has endless opportunities,” he continues. While Korean inbound investment remains relatively high, the same can also be said of investment in the other direction. “Chinese interest in Korea is certainly an interesting phenomenon
►► China offices of Korean law firms Firm Bae Kim & Lee Lee & Ko Shin & Kim Horizon Deryook Dong Bao Lawyer Office
Number of foreign offices 1 1 1 2 1 1
Location Beijing Beijing Beijing Ho Chi Minh City, Shanghai Shanghai Shenyang
►► Domestic firms with Korea practice (non exhaustive) Firm
Head office
Guantao Gold Balance B&D Huamao & Guigu Zhongyin Yingdao Shenhua Shanghai Brilliance Wanlong Deheng Bridge Sun-land Yuehanlin
Beijing Beijing Beijing Beijing Beijing Beijing Shanghai Shanghai Shanghai Qingdao Qingdao Shenyang Hangzhou
►► Notable Sino-Korea transactions in the past two years Deal name Lotte – CTA Markro takeover bid Doosan – Yantai acquisition SK Telecom – Shenzhen E-eye acquisition Hyundai – Shouqin (Qinghuangdao) acquisition 3NOD KOSDAQ IPO Huafeng Textile KOSDAQ IPO Cowell Optic Electronics KOSDAQ IPO
Value Deal (US$m) type 184 M&A – M&A 15 M&A 527
M&A
108 26 –
Equity Equity Equity
51
ALB special report | Korea 09 >>
and one that we are seeing more and more of,” says Wonkyu Han, partner at Lee & Ko. “We have been approached by many Chinese companies and Chinese funds that are interested in making strategic investments in Korean companies, especially in the automotive and electronics industries.” He added that the firm’s Beijing operations have been ‘very busy’ of late. Another noticeable trend is that Chinese companies are increasingly looking to raise funds from Korea’s capital markets. The first listing of a foreign company on the Korean Stock Exchange (KRX) occurred in August 2007, when Shenzhen-based audio components manufacturer 3NOD Digital Group closed its IPO in August, advised on Korean law by local firm Yoon Yang Kim Shin & Yu. Following the precedent set by 3NOD, Huafeng Textile and Cowell Optic Electronics (Shenzhen) has also listed in Korea. “There’ve been several attempts to do this type of project, and we are subsequently handling at least one similar deal, and at least one other deal is being considered. This’ll be a growing area of work,” Yoon Yang Kim Shin & Yu’s senior foreign legal consultant Jiyul Yoo said. Driven by client needs, a number of domestic firms have established a Korea practice. Deheng Law Firm and Zhong Lun, for example, have some of the most competitive Korean practices among domestic firms.
The FISCMA ‘big bang’: Starting is half the task
Thatcheresque in scope and Reaganistic in vision, the long-awaited overhaul of the country’s capital markets may be just the tonic for Korea’s ailing economy, say lawyers. “The capital market reforms are a paradigmatic change in the way of thinking in Korea,” says Wonhyo Han, partner at Lee & Ko. Luke Shin, a foreign attorney at Kim & Chang, agrees, and adds: “[The reforms] are a step in the right direction – a move to be more regionally and globally competitive.” But it remains to be seen whether Korea and its nascent financial 52
“Partly motivated by the poor state of things in Korea, our clients are looking more to China. The mentality of clients setting up in China has really changed. They are starting to look at China as their home market, an independent market that has endless opportunities” Hee Chul K ang, Yulchon services industry are prepared for such a change and able to bear the pressures it will exert – much less willing to embrace it. The rationale for these reforms is an ambitious undertaking to establish Seoul as northeast Asia’s financial and commercial hub by attracting the world’s leading asset management companies to open their regional headquarters there. And, at the same time, expanding the prerogative of at least one domestic financial institution will make it a serious regional and international player. At their core, the aim of the reforms is to remove the impediments regarded as inhibiting the development of a sophisticated financial services industry in Korea. “The [Financial Investment Services and Capital Market] Act will remove restrictions that separate securities, futures, asset management, trust services and other financial services businesses,” says Han. “It will provide a blueprint for innovation in the industry.” The consolidation brought about by the reforms is equally important, say other observers. “The sector has been sorely in needed of consolidation for a while now. It was important to pave the way for the entrance of foreign players, but just as important to get the domestic sector into good shape as well,” says Yong Jae Chang, another partner at Lee & Ko. “The Act is going to consolidate the local industry and we should also see the emergence of domestic banks,” says Tony Dongwook Kang of Bae, Kim & Lee. “We should expect the rise in
consolidation to affect competition and so yield gains in efficiency to improve the allocation of capital and help the sector generate long-term growth.” But whether the optimism of lawyers is well founded and the reforms work to achieve their stated objectives remains to be seen, particularly because the reforms are set to come into effect in the midst of the most inclement economic conditions ever seen in Korea. “The reforms are needed, yes, but their actual implementation will be challenged by the economic environment – most notably the large foreign exchange problems we now face,” says Chang. “Korea is probably not fully prepared for the reforms at this point in time,” adds Hee Chul Kang, a partner at Yulchon. “There are still restrictions on doing business here compared to other countries, fewer technical experts and fewer English speakers. The turbulence overseas may have refocused the attention of the West on the importance of Asia, but I don’t think we are going to see Seoul become the next hub as a result of these reforms.” So, maybe Seoul becoming the northeast Asian financial hub is a stretch – or, at least, probably not achievable by 2012, as stated by President Lee Myung-Bak. What we can look for in the short term, however, is a flurry of M&A activity in the domestic financial services industry. At present, about 50 companies are registered as full-service investment banks in Korea, of which many – if not most – are facing an uphill battle to survive in a deregulated market. ISSUE 6.1
ALB special report | Korea 09 >>
This is bad news for bankers but great news for lawyers – all of whom also expect an M&A surge, albeit on a smaller scale, in the near future. “It’s quite generally accepted that the new regulation could play a role in creating more transactional work in Korea,” says Chang. “The banks that want to stay in the sector are going to have to diversify to remain relevant. However, the more likely scenario is that they will become casualties – absorbed by the larger players – and the number of investment banks will reduce over the next two years.” M&A and rationalisation in the crowded brokerage industry is already occurring. Last November, Kookmin Bank acquired Hannuri Investments and Securities, and has stated that there is plenty more to come. The Industrial Bank of Korea (IBK) has had KRW1trn (US$1bn) added to its acquisitions war chest and CJ I&S has been hitting the recruitment trail in the lead-up to its planned 2009 IPO. In addition, Woori I&S intends to merge with a broker yet to be named, to reach KRW5trn (US$5bn) in net assets, and both Seoul Securities www.legalbusinessonline.com
►► Korean legal market liberalisation: foreign lawyers’ gain to be domestic lawyers’ pain? The number of lawyers practising in Korea is expected to double in the next seven years as the Korean government advances moves to liberalise its legal services market in line with its obligations under the recent free trade agreement with the US. But while liberalisation is expected to raise standards in the industry and bolster the number of lawyers able to handle the complex M&A and cross-border work that is driving the development of Korea’s nascent financial services industry, it is also set to drastically affect domestic ‘independent’ lawyers – those attorneys who do not operate within the corporate space – with many expected either to leave the profession or fall into bankruptcy. In 2007, the Korean Bar Association stated there were 10,176 attorneys registered to practise in Korea, of whom less than 200 were foreign. Both figures are expected to increase by as much as 20% in the years ahead, due to the influx of foreign attorneys and changes to law school testing, which would see the admission of 2,000 new lawyers by 2012 instead of the 1,000 previously suggested. These statistics do not bode well for domestic lawyers. “The job market for lawyers is one of the most competitive in the world,” says a senior partner at one of Korea’s biggest firms. “Because of the nature of transactions happening in Korea at the moment, there is no real need for counsel to be admitted here so, unless some of the younger lawyers are particularly brilliant, they may find themselves having to serve independently.” Of the lawyers who pass the Korean bar exam each year, only the top 30–40% find gainful employment as state prosecutors or judges, or associates at the top seven law firms. However, while these top six – Kim & Chang, Bae, Kim & Lee, Yoon Yang Shin Kim & Yu, Shin & Kim, Yulchon and Lee & Ko – account for more than half the KRW1.3trn law market, they employ only about 10% of Korean lawyers. “It’s really tough for lawyers at the moment,” the source said. “We see a lot of them having to resort to streetpeddling and eventually falling into bankruptcy… many lose face and can’t go on.” Korea Times research indicates that the number of matters handled by independent lawyers is in free fall. In 1997, the average was around 57.2 per year and now the figure is closer to 31.5 and is expected to fall further in the years ahead. “This is certainly regrettable, but it’s part of the liberalisation process,” ALB’s source states. “What needs to be done is to change the nature of legal education in this country – to make Korean lawyers more marketable internationally.” And, indeed, the Korean government and the bar association are already making moves in this direction, to increase the standards and reputation of Korean law schools with a view to making English instruction mandatory in the long term. “The legal establishment has realised the need to make the skills gained by lawyers more portable, so if we have problems like this in the future, there’ll be nothing stopping young lawyers seeking employment overseas – or, ideally, right here in Korea,” the source said.
53
ALB special report | Korea 09 >>
and NH I&S have been considering the prospects of M&A as a route to expansion. All this is not to mention KBS’s now ignominious race for a stake in Lehman Brothers’ Asia operations in September 2008. But whether such activities continue through 2009 remains to be seen. While the complexion of the financial services industry may alter, more profound change – ‘1980s London’-type change – may be much further off. This is because no matter how serious the financial crisis unfolding in Korea becomes, the one that FISCMA is going to be launched into is unlike anything ever seen before and most certainly more grave than the one that slashed share prices late last decade.
The calm before the storm: M&A upside
While consolidation in the country’s financial sector is expected to provide M&A and banking & finance lawyers with a slipstream of deals in the mid to short term, longer term projections remain sketchy. Ask any Korean lawyer to don their soothsayer cap at present and chances are you will get a response that is non committal – an unvarying reply that it is simply too early to tell what will happen. Is this evidence of the conservative nature of the legal profession in Korea or simple pragmatism? ALB’s research suggests it is probably – marginally – more the latter. For, while there may appear to be a steady stream of work coming out of the financial services industry for Korean lawyers, we must not forget the comparatively small size of this sector in the country’s economy. The relevant question is how much work lawyers can derive from an industry that has only 50 companies? It pays, then, to cast the net a bit wider. Despite Korean lawyers’ pragmatic foreboding, this year’s empirical data alone suggests that there is more than enough evidence to be genuinely optimistic about the general M&A outlook moving forward. In the first three-quarters of 2008, Thomson Reuters statistics show that cross-border activity involving any Korean company was up by almost 54
85% to US$17bn from US$9bn in the comparable period last year. And, while most of this total was comprised of capital investment from Europe and the US, it is interesting to note that the bulk of it is made up of Korean companies investing abroad – a trend that Shin notes has rolled steadily through the last five years. “When we used to speak of M&A, we would traditionally talk about it being inbound but, given the developments over the last couple of years, there has been an ongoing story of outbound M&A by Korean companies.” Hyung Jin Kim, a partner at Yulchon, agrees. “Outbound M&A is now more popular. Most of the clients I and my other partners speak to – particularly of the larger companies but also those of some smaller ones – are taking the position that probably the first or second half of next year will be a good time for outbound investment,” he says. At this point, one may be forgiven for thinking that the current discussion is about the M&A prospects for zaibatsu and not chaebol – so striking are the similarities between the two. Both have reached the maximum level of growth allowable in their home markets – hence the need for strategic overseas acquisitions – and both have strong balance sheets – hence the need to clear their cash reserves. The only discernible difference, it would seem, is the strength of local currency, as the won is considerably weaker than the yen at the moment. Nevertheless, Chang believes that the current situation may be simply too
enticing for strategic investors in Korea, as long as they have sufficient appetite for risk. “Korean companies need to be bold if they are going to make such outbound investments,” he told ALB. “For strategic investors – companies that are healthy and have a lot of cash – it makes sense to acquire interests overseas – in the US or elsewhere. If things can be bought at a good price, we expect to see a lot of activity in 2009.” “We are all waiting for the dust to settle a little,” says Shin. “But if we look beyond that, Korean companies must check out overseas markets and compete globally – in 2009, they should be more aggressive.” Needless to say, aggressiveness and looking overseas have never been problems for Korea’s intensely nationalistic chaebol.
“Chinese interest in Korea is certainly an interesting phenomenon and one that we are seeing more and more of. We have been approached by many Chinese companies and Chinese funds that are interested in making strategic investments into Korean companies, especially in the automotive and electronics industries” Wonkyu Han, Lee & Ko ISSUE 6.1
IN-HOUSE US listed Global IT Solutions Company: Contracts Manager, Beijing (5-8 PQE) [C1600] – Experienced senior legal contracts manager to provide support to its business across China and Hong Kong. Candidate should have legal experience in corporate commercial work, ideally with experience in contracts administration and commercial risk issues. They would also be open to consider non-legally qualified candidates who have strong contracts administration and management experience. Fluency in English and Mandarin language skills is essential. US listed Global Electronics Company: Contracts Manager, Taipei, Taiwan (4-8 PQE) [C1599] – Senior legal contracts manager to provide support to its business across Asia Pacific (with focus on China and Taiwan). Candidate should have legal experience in corporate commercial work, ideally with experience in contracts administration and commercial risk issues. Fluency in English and Mandarin language skills are essential. Global US Tech & Manufacturing Corporate (Shanghai): Legal Counsel (5-10 PQE) [C1530] – Ideally with good in-house corporate experience to provide legal support in PRC region. Familiarity with PRC laws & regulations is required. Major Private Equity Investment (Singapore): Senior Legal Director (10+ PQE) [C1472] – Strong cross border corporate transactional m&a experience is required.
Global Energy (Beijing): Senior M&A lawyer (6-9 PQE) – Strong m&a transactional experience is required, particularly in oil and gas industry to support their acquisition activities across China. Good proficiency in English & Mandarin is required. Global Energy (Beijing): Deputy General Counsel (10-15 PQE) – Strong corporate finance experience is required, preferably with some knowledge of oil & gas industry to manage a team of lawyers. PRC qualified lawyer is ideal but is open to strong international lawyer with relevant experience. Fluency in English & Mandarin is required.
BANKING & FINANCIAL INSTITUTION European Private Banks (Hong Kong): Legal Counsel (3-6 PQE) – Qualified lawyer in HK with private banking experience is ideal but is open to lawyers with general banking experience. Proficiency in English & Mandarin is required.
PRIVATE PRACTICE International Law Firms (Hong Kong/ Beijing/ Shanghai): Corporate/Finance (2-8 PQE) – Various UK and US law firms are looking for HK, US or other commonwealth jurisdiction qualified lawyers with various expertise to join their offices in HK or China. For more details on these positions, as well as a full listing of all available positions, please log on to our website at www.legallabs.com. Please contact us at +852 3189 7032/ +65 6236 0166 or resume@legallabs.com for a confidential discussion.
Want to receive ALB weekly? Sign up for our free e-newsletter Stay informed with breaking legal news, events and developments direct to your inbox asia australia / nz middle east
www.
legalbusinessonline.com
Sign off >> ►► Top Legal Advisors on global M&A by value: 2008
Leading UK lawyers grace pages of Who’s Who W
Year to date, as of 12 December 2008 Legal advisor
eil Gotshal & Manges City managing partner Mike Francies, Freshfields financial institutions co-head Will Lawes and Slaughter and May corporate heavyweight Charles Randell recently came across an extra five minutes of fame when they were named in the 2009 edition of Who’s Who – along with numerous film stars, musicians and other notable characters. The high-profile lawyers are three of the 1,000 new individuals to snag a mention in the 161st edition of Who’s Who which profiles some 33,000 individuals in its most recent issue. Pannone senior partner Joy Kingsley, Freshfields London corporate head Mark Rawlinson, Simpson Thacher & Bartlett finance partner Tony Keal and Slaughters’ corporate partner Nigel Boardman and senior partner Chris Saul are also part of the annual list of notable Britons. Constance Briscoe, one of the UK’s few black judges and author of controversial memoir Ugly, and Paul Mitchard, head of litigation at Skadden Arps, are also included in the list.
No. of Deals
Value (US$m)
1. Sullivan & Cromwell
126
371,857
2. Linklaters
209
351,242
3. Allen & Overy
224
324,721
4. Skadden
170
324,211
5. Freshfields
257
323,857
6. Latham & Watkins
248
307,975
7. Clifford Chance
225
271,559
8. Cravath, Swaine & Moore
61
266,498
116
231,259
61
216,541
34,756
2,811,335
9. Weil Gotshal & Manges 10. Simpson Thacher & Bartlett Industry total Source: Thomson Reuters
No smoking without firing R
ochester Law Firm is serious about forcing staff to be healthy. The firm made a stand on smoking when it legally fired a 56-year-old staff member for defying a new policy at work that banned smoking breaks for hourly employees. Karen Kridel took a five-minute smoke break in the morning and another in the afternoon every day in the14 months she worked for the firm as a paralegal – but was fired for continuing the practice after breaks outside of lunch were then prohibited in an October 2006 e-mail. Kridel was fired on the grounds she had engaged in misconduct by violating the no-break policy, a decision that was upheld by the Supreme Court in Albany and could now have to repay the US$3,000 in unemployment benefits she received.
Big bucks Bingham U
S law firm Bingham McCutchen recently snagged a top spot in Fortune magazine’s annual report on 100 Best Companies to Work For. The corporate firm received its ranking for being one of the highest paying employers on the market – the firm offers fresh law school graduates a base salary of US$160,000 on arrival, and the magazine reports that “even the firm’s legal secretaries average a not-too-shabby US$69,000 a year”. Bingham brought three firms into its fold in 2007, increasing staff levels to over 1,000 lawyers spread across 13 different offices, the largest of which is its headquarters in Boston. The average total pay for associates at the firm is reported to be around US$211,017. In Asia, Bingham has offices in Tokyo and Hong Kong.
Ethnicity in the City U
S firm Morrison & Foerster recently hit headlines with the news that it had appointed tax partner Trevor James to managing partner of the firm’s London office – making him the first black managing partner at the international firm. James takes over from Julian Thurston, who will continue at the firm as co-chair of the life sciences group. The announcement has brought to light a number of figures regarding firms and their race-based managing partner records. According to the Black Solicitors Network’s (BSN) 2008 diversity league table, until recently Beachcroft, Clifford Chance, DLA Piper and Linklaters were the only UK firms with any black partners. On the US firm front, 10% of City partners at Weil Gotshal & Manges are black (two partners), while fewer than 1% of Reed Smith’s partners are black.
56
ISSUE 6.1
LONDON
伦敦
•
•
PARIS
巴黎
•
HONG KONG
•
香港
•
•
SINGAPORE
新加坡
•
•
BRISBANE
布里斯本
•
MELBOURNE
•
PERTH
•
墨尔本
•
柏斯
•
SYDNEY
•
悉尼
•
AUCKLAND
•
奧克兰
•
WELLINGTON
•
威灵顿
Even though the market is cool, we still have hot jobs. In-house Legal Director (10+ yrs pqe) Shanghai This is an excellent opportunity to take up a management position in a leading European company. You will report directly to the American managing director in Shanghai. You must be a PRC lawyer with a minimum of 10 years corporate and commercial legal experience, including as an in-house counsel. Strong commercial sense and fluent English is essential. Ref: 7784/CB
M&A Counsel (10+ yrs pqe) Beijing Fortune 50 company needs a senior-
level lawyer who has substantial PRC M&A experience gained with an international company or firm. Prior exposure to large scale deals is sought. A law degree from China or extensive knowledge of PRC law and native fluency in Mandarin are prerequisites along with good English. Good communication skills are needed to interface with stakeholders, government and business units. Ref: 8028/CB
Head of Compliance (10 yrs exp) Beijing Lawyer or compliance professional sought by this international bank to lead a banking compliance team in Beijing. You need to have a minimum of 10 years experience in either stated owned banks or foreign banks. PRC national with excellent command of English and familiarity with PRC banking regulators is essential. Ref: 8023/CB
Senior Legal Counsel (5-10 yrs pqe) Shanghai or Beijing Working closely with the General Counsel, this is a senior role with tremendous growth potential within one of the world’s biggest companies. PRC law degree and a foreign law degree are prerequisites, together with a foreign bar admission and international firm training. The position requires corporate commercial experience. Our client is looking for a dynamic and business savvy person who has excellent English language skills. Ref: 8008/CB
Corporate Counsel (6+ yrs pqe) Hong Kong This US based global giant has been experiencing tremendous growth necessitating the need for an additional attorney to support the Asia-Pacific region. This senior hire will handle a broad range of transactional and operational matters. Candidates need prior experience gained either in an international law firm or multinational. Ability to work independently is important. Excellent English and native Mandarin language skills are required. Expect top compensation and benefits with excellent career prospects and friendly work environment. Ref: 7738/CB
Private Practice
Senior In-house Counsel (8 yrs pqe) Shanghai Award winning global
China Partner (10+ yrs pqe) Hong Kong This leading international law firm has seen its firm’s profits show record growth, year-on-year for the past 4 years. It is committed to building on its international platform. Currently, it has an opening for an accomplished partner to grow their China business. You will need a China law background and a following of corporate clients. Excellent English and Mandarin language skills are essential. Ref: 7987/CB
In-house Counsel (7-8 yrs pqe) Shenzhen This US based giant continues to grow and seeks a senior-level counsel with solid PRC experience gained from an international firm or corporation. In this APac regional role, the incumbent will report to the China GC and will need to have the experience and skills to manage a team. You must have a general commercial background and be willing to take on the broad scope of day-to-day operational support of all the business units. Ability to read and write Mandarin Chinese and English is required. Excellent promotional prospects. Ref: 8007/CB
China Partner Shanghai/Beijing This dynamic US firm has seen fantastic
company desires a lawyer with PRC experience gained from a top MNC or international law firm. This position will supervise a team of lawyers based in several offices throughout China. Regulatory background would be a distinct asset. Strong English and Mandarin language skills are mandatory. Look forward to excellent career prospects. Ref: 8030/CB
Senior Legal Counsel (7 yrs pqe) Beijing A fortune 500 US company seeks a Senior Legal Counsel to be based in Beijing. The position will advise and support junior lawyers. The qualified applicant must have at least 7 years legal experience gained either from top tier law firms or fast paced multinational companies. You will need to have solid experience in handling general corporate and commercial transactions, as well as possess sound IP knowledge. LLB/LLM from a leading PRC or overseas university is required, and excellent English and Mandarin language abilities are essential. Prior legal experience from an IT company is highly desirable. Ref: 7961/CB
growth in Asia. There is an urgent need for partners to be based in their Shanghai and Beijing offices with the expertise to leverage off the existing practice, as well as a proven track record of building a business. The focus will be on corporate, M&A, finance and projects. Fluency in Mandarin and English is required. Ref: 7335/7334/CB
Corporate Finance (4-7 yrs pqe) Shanghai Talented lawyers with a mix of finance and general corporate experience will be considered for openings within this international law firm. To be considered, you need a substantial background in PRC law gained in an international law firm. Strong English language skills are required. Fluency in Mandarin is preferred but not required. Look forward to working with an exciting and friendly corporate team. Ref: 8001/CB Project Finance Lawyer Shanghai Well regarded practice is recruiting a
Project Finance Lawyer to work in an expanding team on deals in China and across Asia. Strong academics and US qualification are needed. The work will cover all aspects of project finance and will be mainly PRC focused. You must have strong project finance skills and Mandarin language skills to be considered. Ref: 7974/CB
HONG KONG Tel: (852) 2520 1168 Fax: (852) 2865 0925 Email: hughes@hughes-castell.com.hk SINGAPORE Tel: (65) 6220 2722 Fax: (65) 6220 7112 Email: hughes@hughes-castell.com.sg
www.hughescastell.com
Affidavit gone missing? We have the information you’re looking for.
Records Management is much more than storing cartons and records. It's about reducing the risk of misplacing critical information. We can protect your business information and help you access your records quickly and easily. With Crown, you will always have the information you are looking for. Storage of Cartons, Files, Documents & Electronic Media Cataloging, Indexing & File Insertion Scanning, Imaging, Data Conversion & Data Hosting Escrow Services Secure Destruction Consultancy & Benchmarking Web-based Access via CrownInteract & RMi
Crown Records Management Beijing, Tianjin, Dalian, Shanghai, Chengdu, Xiamen, Guangzhou, Shenzhen, Macau, Hong Kong, Taipei, Ulaanbaatar
The Information You’re Looking For.
www.crownrms.com