ISSUE 6.6
ALB Special Report: Shandong 09
Opportunity knocks in China’s second-richest province
山东律师业逐步走向高端
Bond market heats up
Lack of IPOs sees firms change way they do business
债券市场一枝独秀
Rio Tinto-Chinalco deal failure
How will it affect future outbound investment?
力拓交易受挫将如何影响海外投资？
CHINA
Boom in the bust Restructuring and insolvency practices cash in during the downturn
清算重组业务发展正逢良机 n DEALS ROUNDUP n LATERAL MOVES n MARKET STATS n Regulatory UPDATES n UK, US REPORTS
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Editorial >>
Bigger not as better as it used to be
F
ew working in or around the Chinese legal profession in the past two decades would have cause to dispute the Heraclitean observation that “nothing endures but change”. And most have learned, sometimes spectacularly quickly, to adapt and prosper. Occasionally, however, a change comes along that is so deep-seated and fundamental it demands a radical change in mindset. As with the global financial crisis and the reactions to it of the leading firms focusing on cross-border work. Throughout the first half of this decade, a handful of firms feasted on vast amounts of lucrative FDI, M&A, and, latterly, listings work. These big firms, whether international or domestic, worked on large cross-border deals and as their track records grew, so did their size and charge-out rates. These firms deserve to be lauded for their impressive growth and pivotal role in the country’s development, but the current crisis has wreaked havoc on the very types of deals that previously served them so well. Zhongwang notwithstanding, the consensus is that going forward billion-dollar deals will be much thinner on the ground. For these firms the feast is over. As one leading managing partner in a neighbouring jurisdiction recently commented: “The big Chinese firms are really hurting.” Whether current conditions will lead to lasting change in the Chinese legal landscape will depend on both the agility of these firms and the opportunism of the chasing pack. The former must re-tool their lawyers, restructure their practice groups and review their revenue models. The latter must acquire newly available talent, market their specialist expertise, leverage their lower overheads and create leaner operations. The clients, with their trimmed budgets and increasingly deep knowledge of what is on offer, will be the ones who ultimately govern the extent of change in the law firm pecking order and the fate of today’s top-tier, crossborder-focused firms.
Whether current conditions will lead to lasting change in the Chinese legal landscape will depend on both the agility of the leading cross-border firms and the opportunism of the chasing pack 2
IN THE FIRST PERSON “The will of the authorities that enforce laws is stronger and now companies must be more careful when doing business” David Boitout, Gide Loyrette Nouel (p30)
“Local Shandong firms will face more competition from Beijing firms. That’s an inevitable trend” Cai Zhongjie, Kang Qiao (p34)
“We can see judicial damage awards for IP right violations in China are increasing. In the past few years, there have been many cases involving significant damages” Gordon Gao, Fangda (p38)
CHINA
ISSUE 6.5
CONTENTS >>
contents
ALB China issue 6.6
30
34
10
COVER STORY
30 Cash from the crash
As insolvency practices across Asia awake from their slumbers and see work begin to pour in, is the same trend occurring in China?
ANALYSIS 10 Rio Tinto-Chinalco: The fallout Will Chinese companies reassess investing in Australia after the failure of the US$19.5bn deal? 12 REITs: Pressure building Lawyers would welcome real estate investment trusts with open arms, but the legislation may be some time yet
38 ALB China’s Leading IP Firms The who’s who of intellectual property law firms and lawyers as voted for by practitioners across the Asia-Pacific region
COMMENTARY
42 ALB In-house Legal Summit: Shanghai 09 What China’s highest profile in-house lawyers said about the current legal services market
21 Insurance Grandall
REGULARS
23 Singapore Loo & Partners
14 Debt market: IPO drought brings change Due to a lack of IPOs, businesses have increasingly turned to bonds – forcing firms to change the way they do business
16 • • •
FEATURES
• • • •
34 ALB Special Report: Shandong 09 Despite the global economic crisis, the region continues to offer a range business opportunities for local, national and even international firms
24
NEWS Zhonglun W&D opens Riyadh office Fujian prepares for Taiwanese influx Salans Shanghai chief to head Greater China practice Han Kun hiring spree fuels expansion Duo drives Hummer to China Freshfields swaps partners First IPO in Taiwan attracts Chinese firms
17 UK report 19 US report
20 Regulatory Paul, Weiss
22 International tax Azure Tax
24 Regulatory Zhonglun W&D 25 Arbitration SIAC
PROFILES 29 Guantao 33 Chen & Co 37 Kang Qiao 41 Longan
27 Mergermarket M&A update 44 Sign off
4
ISSUE 6.6
NEWS | news >>
deals in brief | PRC/HONG KONG | ►► BoA-CCB shares sale ►►美国银行出售建设银行H股
HEADLINE DEAL
Value: US$7.3bn
Firm: Commerce & Finance Client: China Construction Bank
Firm: Deacons Client: Bank of America Lead Lawyers: Alexander Que, Rhoda Yung
Firm: Clifford Chance Client: Bidders Lead lawyer: Ting Ting Tan
• Private sale of China Construction Bank H shares by Bank of America, to a group of investors including, China Life Insurance, Hopu Investment Management and Temasek • Commerce & Finance has been a long-term external legal advisor to CCB and advised on the company’s IPO. Cleary Gottlieb advised BoA on the acquisition of its CCB stake back in 2005, while Clifford Chance worked with Temasek on its investment in CCB in 2005
Firm: Cleary Gottlieb Steen & Hamilton Client: Bank of America Lead lawyers: Paul Shim, Megan Tang
Megan Tang Cleary Gottlieb
Rhoda Yung Deacons
| china/New Zealand/ AUSTRALIA | ►► Haier-Fisher & Paykel stake acquisition 海尔入股新西兰斐雪派克 Value: US$121m
Firm: Freehills Client: Fisher & Paykel
Lead lawyers: Tony Sparks, Philippa Stone Firm: Bell Gully Lead lawyers: Brynn Gilbertson, Gavin Macdonald, Murray King Client: Fisher & Paykel Firm: Russell McVeagh Clients: Deutsche Bank AG, First NZ Capital Securities
Firm: Clayton Utz Client: Haier Group Lead lawyers: John Elliott, Michael Corrigan Firm: Simpson Grierson Lead lawyers: Stephen Ward, Don Holbrow Client: Haier Group
“[The Greentown] tender offer and exit consent demonstrates that Chinese companies can successfully use such transactions to help restructure their capital structures and potentially increase financial flexibility during the current credit crisis” Anna-Marie Slot, White & Case
• Difficult cross-border transaction involving changing structure, short timeframe and parties in New Zealand, Australia and China John Elliot Clayton Utz
• Deal required consideration of listing rules of NZX and ASX, Takeovers Code and seeking waivers by exchanges • Fisher & Paykel is New Zealand’s largest household appliance manufacturer • Haier will become company's largest shareholder, holding 20% stake
“Although Fisher & Paykel is a New Zealand company it is listed on the ASX, so there were a lot of listing rule issues for our team to consider in structuring the agreement” John Elliott, Clayton Utz 6
| China/Hong Kong | ►►Greentown China cash tender offer 绿城中国回购外国高息债券 Value: US$400m Firm: T&C Law Firm Client: Greentown China Lead lawyers: Xu Guoning, Shen Haiqiang Firm: White & Case Client: Greentown China Holdings Lead Lawyer: Anna-Marie Slot Firm: Davis Polk Anna-Marie Slot & Wardwell White & Case Client: Deutsche Bank AG Lead Lawyer: William Barron • Zhejiang-based property developers Greentown China cash tender offer to purchase outstanding US$400m senior notes due 2013 • T&C acted as PRC legal counsel for Greentown China on IPO on Hong Kong Exchange, issuance of high ISSUE 6.6
NEWS | news >>
►► YOUR MONTH AT A GLANCE
yield bonds in Singapore and issuance of convertible bonds overseas
| china/US | ►► Shanda-Hurray! stake acquisition 盛大收购华友世纪股份 Value: US$46m Firm: Davis Polk & Wardwell Client: Shanda Interactive Entertainment Lead Lawyers: James Lin, Mark Lehmkuler Firm: Morrison & Foerster Client: Hurray! Firm: Weil, Gotshal & Manges Client: Nomura International Lead Lawyer: Akiko Mikumo
James Lin Davis Polk
• Shanda Interactive Entertainment will acquire 51% shares of Hurray! Holdings • Both companies Nasdaq-listed • James Lin of Davis Polk recently www.legalbusinessonline.com
Firm
Jurisdiction
Deal name
Value (US$m)
Deal type
Baker & McKenzie
China/Australia
GRAM-PanAust acquisition
142
Bell Gully
China/New Zealand/ Australia
Haier-Fisher & Paykel acquisition
121 M&A
Clayton Utz
China/New Zealand/ Australia
Haier-Fisher & Paykel acquisition
121
M&A
Cleary Gottlieb Steen & Hamilton
China/Hong Kong
BoA-CCB shares sale
7,300
Equity
Clifford Chance
China/Hong Kong
BoA-CCB shares sale
7,300
Equity
China/US
World of Warcraft licencing deal
n/a
Licencing
China
Ko Yo Ecological Agrotech financing
30
Loan, Equity
Commerce & Finance
China/Hong Kong
BoA-CCB shares sale
Davis Polk & Wardwell
China/Hong Kong
Greentown China cash tender offer
China/US
Shanda-Hurray! stake acquisition
Deacons
China/Hong Kong
BoA-CCB shares sale
Freehills
China/New Zealand/ Australia
Haier-Fisher & Paykel acquisition
Freshfields
China/Hong Kong
7,300
M&A
Equity
400
Debt
46
M&A
7,300
Equity
121
M&A
CITIC Bank-CITIC IF acquisition
1,800
Equity
Fulbright & Jaworski China//Australia/UK
CNOOC-BG Group LNG agreement
Undisc
Project development
Global
China
Harbin City Planning Investment Group bond issuance
Herbert Smith
China//Australia/UK
CNOOC-BG Group LNG agreement
Jade & Fountain
China/Taiwan/US
Array Networks Taiwan IPO
Jun He
China/US
Sichuan Tengzhong-Hummer acquisition
KL Gates
China/Taiwan/US
Mallesons Stephen Jaques
293 Undisc
Debt Project development
79
Equity
Undisc
M&A
Array Networks Taiwan IPO
79
Equity
China/Australia
GRAM-PanAust acquisition
142
M&A
McCullough Robertson
China/Australia
GRAM-PanAust acquisition
142
M&A
Morrison & Foerster
China/US
Shanda-Hurray! stake acquisition
46
M&A
China/US
World of Warcraft licencing
n/a Licencing
Richards Butler
China/Hong Kong
CITIC Bank-CITIC IF acquisition
1,800
Equity
Shearman & Sterling
China/US
Sichuan Tengzhong acquisition of Hummer
Undisc
M&A
Simpson Grierson
China/New Zealand/ Australia
Haier-Fisher & Paykel acquisition
121
M&A
T&C Law firm
China/Hong Kong
Greentown China cash tender offer
400
Debt
Vinson & Elkins
China/Canada
Sinopec and CNOOC-Talisman acquisition
315
M&A
Weil, Gotshal & Manges
China/US
Shanda-Hurray! stake acquisition
46
M&A
White & Case
China/Hong Kong
Greentown China cash tender offer
400
Debt
Does your firm’s deal information appear in this table? Please contact
alb@keymedia.com.au
61 2 8437 4700
7
NEWS | news >>
“Many mid-tier companies that have done well domestically in China are now looking to expand abroad. With strong buying power and a vision to go global, mid-tier acquirors represent a source of opportunities for international firms advising on cross-border transactions” Paul Strecker, Shearman & Sterling
advised on US$175m convertible bond offering by Shanda Interactive Entertainment
| china | ►► Harbin City Planning Investment Group bond issuance 哈尔滨城市建设投资集团发 行债券 Value: US$293m Firm: Global Law Offices Client: Harbin City Planning Investment Group Lead lawyers: Qiang Gaohou, Li Wen • Harbin City Planning Investment Group has issued US$293m of corporate bonds with maturity of 10 years
| china/us | ►► Sichuan-Hummer acquisition 四川腾中重工收购悍马 Value: Undisclosed Firm: Jun He Client: Sichuan Tengzhong Firm: Shearman & Sterling Client: Sichuan Tengzhong Lead Lawyers: Paul Strecker, Lee Edwards Paul Strecker
• Sichuan Shearman & Sterling Tengzhong Heavy Industrial Machinery has proposed to acquire Hummer from GM • Tengzhong will acquire rights to Hummer brand, along with senior management and operational team • Tengzhong will assume existing Hummer dealer agreements and is expected to sign long-term contract assembly and component and material supply agreement with GM
| china/AUSTRALIA/UK | ►► CNOOC-BG Group LNG agreement 中海油与英国天然气集团签 署合作协议 Value: Undisc Firm: Herbert Smith
8
Client: CNOOC Lead lawyer: Anna Howell Firm: Fulbright & Jaworski Client: BG Group Lead lawyer: Stefan Ricketts • China National Offshore Oil Corporation (CNOOC) and affiliates have signed liquefied natural gas (LNG) project development agreement with BG Group for the sale of LNG from BG Group’s Queensland Curtis coal bed methane LNG Project in Australia • Herbert Smith has been instructed by CNOOC to advise on number of overseas investment and transactions in past few years
“The energy sector is still active under the current economic conditions and we look forward to continuing to work with CNOOC on this and further deals in the coming years” Anna Howell, Herbert Smith
| china/AUSTRALIA | ►► Guangdong Rising Assets Management-PanAust acquisition 广晟资产收购澳洲矿业公司 PanAust股权 Value: US$142m Firm: Baker & McKenzie Client: Guangdong Rising Assets Management Firm: Mallesons Stephen Jaques Client: PanAust Lead lawyer: John Humphrey Firm: McCullough Robertson Client: PanAust Lead lawyer: Derek Pocock • Guangdong Rising Assets Management (GRAM) has acquired 19.9% of shares in Australia-listed copper and gold explorer PanAust • GRAM is state-owned asset management company focusing ISSUE 6.6
NEWS | news >>
on non-ferrous metals and mining sector
| china/Hong kong | ►► CITIC Bank-CITIC International Financial shares acquisition 中信银行收购中信国金股权 Value: US$1.8bn Firm: Freshfields Client: China CITIC Bank Lead Lawyer: Chris Wong Firm: Richards Butler Client: Citic Group Lead Lawyer: Denise Jong • China CITIC Bank has entered into sale purchase agreement with CITIC Group to acquire 70.32% stake in CITIC International Financial Holdings for US$1.75bn • Freshfields team led by Chris Wong acted as international counsel to underwriters in the US$6bn IPO of China CITIC Bank in 2007
Client: Blizzard Entertainment Lead lawyers: Amy Ho, Emma Davies
operations located on mainland
• NetEase.com, a NASDAQlisted internet Paul Boltz Morrison & company, signed licensing Foerster deal with Blizzard Entertainment to operate World of Warcraft in China for three years once Blizzard’s current arrangement with The9 expires • World of Warcraft is world’s largest multiplayer online role playing game, with an estimated 10 million subscribers around the world. • Is number one online game in China
| china | ►► Ko Yo Ecological Agrotech financing IFC为四川玖源集团提供 3000万美元资金支持 Value: US$30m
| china/canada | ►► Sinopec and CNOOCTalisman Energy assets acquisition 中石化和中海油联手竞购 Talisman资产 Value: US$315m Firm: Vinson & Elkins Client: Sinopec and CNOOC Lead lawyers: David Blumental, Boyd Carano • Sinopec and CNOOC will buy assets in Trinidad and Tobago from Canada’s Talisman Energy for approximately US$315m • In 2008, Vinson & Elkins advised Sinopec on US$2bn takeover of Toronto-listed Tanganyika Oil
| china/US | ►► World of Warcraft licencing deal 网易获《魔兽世界》中国内地 代理权 Value:N/A Firm: Morrison & Foerster Client: NetEase.com Lead Lawyer: Paul Boltz Firm: Clifford Chance www.legalbusinessonline.com
Firm: Clifford Chance Client: IFC Lead Lawyers: Andrew Whan, Bruce Schulberg, Terence Foo • IFC, member of the World Bank Group, is financing construction of 450,000 tonne-per-annum fertiliser plant in China's Sichuan Province, helping region recover from last year’s devastating earthquake • IFC has signed US$20m loan and US$10m equity investment with Koyo Ecological Agrotech Group in support of its ammonia and urea plant in Dazhou City
| china/Taiwan/us | ►► Array Networks IPO 在台湾兴柜上市 Value: US$79m Firm: Jade & Fountain Client: Array Networks Lead lawyers: Scott Guan, Steven Huang Firm: KL Gates Client: Array Networks • Array Networks, headquartered in Silicon Valley, has main
• US$79m IPO on Taiwan’s emerging stock market is first ever launched by a company based outside the island
“For companies with an offshore structure that have Chinese background and/or operation, the Taiwan GreTai market will be a new choice of venue for raising funds. Given the common language and culture of Mainland China and Taiwan, such an option might be attractive for such companies” Scott Guan, Jade & Fountain
| indonesia | ►► Republic of Indonesia global sukuk issuance 印尼政府发行全球伊教规 债券 Value: US$650m
Firm: Allen & Overy Client: Republic of Indonesia Lead lawyers: David Johnson, Hooman SabetiRahmati, Ken Aboud
properties in Jakarta and Bandung • The issuance was several times oversubscribed • Joint lead managers for issuance were Barclays, HSBC and Standard Chartered Bank
| india | ►► Suzlon Energy convertible bonds issuance 印度苏司兰能源发行可转债 Value: US$500m
Firm: Clifford Chance Client: JP Morgan Securities, Macquarie Capital Securities Lead lawyers: Rahul Guptan, Connie Heng, Alex Lloyd
Rahul Guptan Clifford Chance
Firm: AZB & Partners Client: Banks Firm: Linklaters Client: Suzlon Energy
Alex Lloyd Clifford Chance
Firm: Amarchand & Mangaldas Client: Suzlon Energy Firm: Allen & Gledhill Client: Suzlon Energy • Involved consent solicitation, cash tender offer and exchange offer to holders of two series of Suzlon’s convertible bonds due 2012 • First India-related transaction to be managed through CC’s India Capital Markets Unit
Ken Aboud Allen & Overy
Firm: Assegaf Hamzah & Partners Client: Republic of Indonesia
• Republic of Indonesia issued first global Shariah-compliant bond or sukuk • Sukuk structured around sale to a special purpose vehicle, Perusahaan Penerbit SBSN Indonesia I, and lease-back of 66 state-owned
Scott Guan Jade & Fountain
9
NEWS | analysis >>
Analysis >>
Rio Tinto-Chinalco: will failed deal take away Australia’s shine? After the failure of the Rio Tinto-Chinalco deal, will Chinese companies now think twice before investing in Australia? ALB China investigates
T
he sentiment that best describes the response of Chinese investors and their legal advisors to the rejection of Chinalco’s US$19.5bn investment in Rio Tinto is discouragment – huge discouragement. “Chinalco is very disappointed with the outcome and so are we,” says Peter Cook, a partner at Mallesons Stephen Jaques who led the team that acted as Chinalco’s Australian legal advisor on this transaction. “Rio Tinto had the option to do what they did and they've done what they've done.” According to industry observers, the transaction was fully documented and had already entered the condition
10
precedence phase prior to the cancellation. Each of the legal advisors involved have already done a significant amount of legal work and had endless dealings with the main regulator – the Foreign Investment Review Board (FIRB). So the fact the deal ended the way it did makes it hard to swallow, particularly for the acquiror and its legal advisors – Mallesons, Clifford Chance and Haiwen & Partners. “There would have been a very significant burden on the law firms involved up until now,” says Barry Irwin, a partner at Clayton Utz, which has been increasingly busy working on crossborder energy & resources transactions
involving Chinese acquirors. “It’s not good news for a firm to be associated with any deal that didn’t succeed for whatever Ian McCubbin reasons, but PRC Deacons investors will value the firms’ experience, as it had extensive and direct exposure to all of the issues related to a major investment like this one, which was a multi-billion dollar deal that involved iconic assets.” Like any failed deal, the cancellation of the Rio-Chinalco deal will inevitably have a negative impact on Chinese ISSUE 6.6
NEWS | analysis >>
sentiment towards investment in Australia. However, it could have been a lot worse. “The deal has fallen over due to commercial reasons and marketBarry Irwin Clayton Utz driven forces. But it is going to take away the shine of the attractiveness of Australia, because it represents another failed Australian deal,” Irwin says. Its been far from plain sailing for PRC investors this year – in March, the FIRB rejected the original proposal by China Minmetals to take over OZ Minerals and only approved its revised proposal recently, which excluded OZ Minerals’ flagship assets in Prominent Hill. “In some way, it is not a bad result,” Irwin says. “We haven’t got to the point where the treasurer has potentially said ‘no’, which then would have been very unfortunate and would have had a very adverse impact on Chinese investment into Australia.” Many other Australian lawyers who have represented Chinese companies investing in Australia agree that this disappointing outcome may have some positive implications for future Chinese investment in Australia.
As Ian McCubbin, leader of China business for Deacons, says, although this deal was the single largest deal that had been seen for some time, it doesn’t represent the sum total of Chinese investment prospects in Australia. “The commercial forces driving Chinese companies’ interest in Australia and the potential benefits to this country from that investment still apply, regardless of the outcome of any individual deal,” he says. McCubbin expects to see that interest continue, especially in deals like that struck earlier this year between Ansteel and Gindalbie. Investors will be selective and deals may be fewer in number; but those that do proceed may well be of significant value and strategic importance for the prospective Australian partner. For the most part, they will still involve China’s leading state enterprises. And investments will be driven by the quality of each asset rather than the profile or size of the parties with whom they’re dealing. “The magnitude and complexity of the Chinalco proposal has in fact tended to overwhelm and become synonymous with the broader debate about the merits of Chinese investment, to the detriment of other highly beneficial investments,” McCubbin says. “Now that the Chinalco proposal is no longer on
“The deal has fallen over due to commercial reasons and market-driven forces. But it is going to take away the shine of the attractiveness of Australia, because it represents another failed Australian deal” Barry Irwin, Clayton Utz
the table, each investment proposal from China can be judged on its particular merits, rather than being enveloped by a perceived bilateral impasse.” The real impact of this event on Chinese outbound investment into Australia remains to be seen. One of the obvious knock-on effects will be added pressure on legal teams working for PRC companies that have recently entered into acquisition agreements, such as Tengzhong and PetroChina. “This development will strengthen views among Chinese corporates – particularly in the energy & resources sector – that it may take more than their cash to open the doors to deals for them overseas,” says Freshfields Bruckhaus Deringer partner Antony Dapiran. ALB
中铝“失手”力拓之后澳大利亚市场 光环会否褪去？
中
国铝业向力拓投资195亿美元的计划 遭拒后，用“大失所望”形容中国投资 人及其法律顾问的心情再贴切不过。 万盛律师事务所合伙人 Peter Cook，带 领业务团队参与此项交易，担任中国铝业澳 大利亚法律顾问，他表示： “中国铝业对这个 结果十分失望，我们亦是如此。” 业界人士指出，在交易取消之前，交易文件 应已全部起草完毕，并进入最后审批阶段。 参与交易的所有法律顾问已完成大量法律工 作，且与主要监管机构－外国投资审查委员 会完成不计其数的协调沟通工作。这种结局 令人难以接受，对收购方及其法律顾问（万 www.legalbusinessonline.com
盛、高纬绅和海问）而言尤其如此，他们都曾 为促成交易辛勤工作。 Clayton Utz 目前也越来越多地参与到 中国企业在澳洲收购的能源和资源类交易 项目中。该所负责此类业务的合伙人 Barry Irwin 表示： “参与[中铝-力拓]交易的律师 事务所工作任务应该相当繁重。” “无论何种原因造成事务所参与的交易未 能成功，对这家律所而言都不是好消息。但 中国投资人更重视事务所的资历，有参与涉 及数十亿美元和知名资产交易经验的律所， 对潜在投资者有很大的吸引力。” 与任何失败的交易一样，力拓－中铝交易
的取消定会对中国企业赴澳大利亚投资的热 情产生不利影响。不过，一些律师认为这种 结局并不是最坏的结果。 Irwin 认为： “商业原因和市场因素是交 易失败的主要原因。作为中国企业赴澳投资 的又一次失败，将导致澳大利亚的市场吸引 力光环褪去。” 今年，中国投资者在澳大利亚市场历经坎 坷。3月，外国投资审查委员会拒绝中国五矿 集团收购 OZ Minmetal的原有计划，近期 才批准修改后的收购计划，新计划将 OZ Minmetal 在 Prominent Hill 的核心资产 排除在外。 11
NEWS | analysis >>
Analysis >>
“This development will strengthen views among Chinese corporates - particularly in the energy and natural resources sector - that it may take more than their cash to open the doors to deals for them overseas”
China takes time to get it REIT Lawyers have been waiting for years for the Chinese authorities to enact a real estate investment trust and while it seems it would prove a popular move, the legislation may still be some time yet
Antony Dapiran, Freshfields
Irwin 表示： “从某种意义出发，这种结果 还不算最糟糕。假如这项交易因未通过政府 部门的审批而终止，这会对中国企业投资澳 洲的积极性打击更大，从而对律师业务产生 不利的影响。” 其他曾代表中国企业赴澳投资的澳大利亚 律师亦认为，此项交易令人失望的结果也许 会对将来中国企业赴澳投资带来某些积极 影响。 Deacons 中国业务主管 Ian McCubbin 认 为，尽管该交易在目前看来是规模最大的单 笔交易，但并不代表目前中国企业赴澳投资 的总规模。McCubbin 表示： “无论任何单项 交易的结果如何，推动中国企业赴澳投资的 因素以及澳大利亚市场的投资收益前景仍然 存在，并且具有较大吸引力。” McCubbin 预计，中国企业对澳大利亚市 场的兴趣仍将继续保持，类似年初鞍钢与 Gindalbie 的交易未来前景尤其看好。这意 味着投资人将会精心挑选收购对象，交易数 量可能会随之下降。对潜在的澳大利亚合作 方而言，得以顺利进行的交易定会具有重大 价值和战略重要性。多数澳大利亚企业仍愿 意与中国领先国有企业合作。投资的主要推 动因素将更着重于目标资产的质量，而非交 易方的背景或业务规模。 McCubbin 表示： “中国铝业收购计划的深 入程度和复杂性达到前所未有的程度，因此 引发了对中国投资利和弊的广泛争论。现在， 中国铝业的收购计划已经终止，市场可更客 观地对待其它中国企业收购方案为目标公司 带来的益处，减少政治因素的制约。” 此次事件对中国企业赴澳大利亚投资的实 际影响还有待观察。但可以肯定的一点是， 对近期在海外签署收购协议的中国企业而 言，例如腾中重工和中国石油，其法律服务团 队将更加努力地工作已确保项目成功完成。 富而德合伙人 Antony Dapiran 表示： “ 海外收购领域的近况可帮助中国企业深化认 识，尤其让能源和自然资源领域的企业深刻 认识到，单凭雄厚财力，很难敲开海外交易 的大门。” 12
I
t seemed only a matter of time before China got its first homegrown real estate investment trust (REIT). After all, next door in Hong Kong property investment is something of an obsession and, as long ago as last May, word was out that the China Securities Regulatory Commission (CSRC) had sent a delegation to Australia study property trusts, and was working with other authorities including the central bank to draw up legislation regulating PRCbased REITs. But the Chinese authorities have still not introduced the legislation needed to make REITs a reality on the mainland and two proposed REIT pilot schemes formulated by the People’s Bank of China (PBC) are not yet off the ground, causing some commentators to fear that China is still no closer to its first REIT. Vivian Lam, a Hong Kong-based partner with international firm Paul Hastings, has recently advised RREEF China Commercial Trust, CapitaRetail China Trust Management and GZI REIT Asset Management on REITs with portfolios of PRC-based
real estate assets to list in Asia. She is also involved in several other Hong Kong and PRC real estate-related REIT transactions and their proposed listings. Lam says it is only a matter of time before China gets its first REIT. “REITs have already been endorsed at the highest level by the State Council,” she says. “PBC and CSRC have spent a lot of time studying various proposals, so we are definitely going down that route. There was strong expectation that the pilot programs will be announced by second quarter this year, but the authorities may be spending more time fine-tuning the rules because they are keen to get this right and have something that works for the local market.” However, Hayden Flinn, a Hong Kong-based partner at Mallesons Stephen Jaques, says while it may look as though the Chinese Government will eventually go down that route, it is still difficult to judge exactly when it will become a reality. “They’ve been talking about it for several years now and nothing has come to market yet,” he says. Flinn says that for things to start ISSUE 6.6
NEWS | analysis >>
“I see no reason in the medium to long term why REITs wouldn’t be successful in China. In the short term though, everyone’s struggling to predict what will happen” Hayden flinn, malleson stephen jaques
moving, PRC’s regulators will need to take the lead, adding that he has had plenty of interest from potential investors wanting to be part of REITs on the mainland. It is just that the interest has been spread over a number of years and it has actually been decreasing recently as international investors look towards markets that are perceived to be more stable. “Because of the global financial crisis, investors are now tending to look to more established markets,” Flinn says. “Singapore, Hong Kong and Australia are seen as less risky because of more certainty over the legal framework in these jurisdictions.” Lam says she has had a lot of interest from investors, developers, local trust companies and fund management companies in mainland-based REITs. “We have given advice to some ‘potential REITs’ in structuring their proposed product,” she says. “REITs represent a whole new exit for investors and developers, and intermediaries are also interested in getting into REITs management. But the entry barriers will be set quite high, at least initially, as regulators will probably allow a limited number of carefully vetted pilot projects out first to test the market, and develop the market in a gradual and controlled manner.” She sees the start date being pushed back because authorities are wary of adopting overseas models which may not suit the Chinese economic environment. “Politically, authorities in
房地产投资信托基金的慢慢长路
中
国首个本土房地产投资信托基金 （REIT）呼之欲出，仅剩时间待定。毕 竟，临近的香港房地产投资行业发展态势喜 人。早在去年5月，便传闻中国证监会（CSRC） 派出代表团赴澳大利亚调研房地产信托基 金，并与包括中央银行在内的其它监管机构 共同起草中国房地产投资信托基金的监管 法规。但相关监管机构仍未正式公布房地 产投资信托基金的管理法规，中国人民银行 （PBC）的两项房地产投资信托基金试点方 案亦尚未执行，业界担心中国首个房地产投 资信托基金的诞生仍需时日。 近期，ALB采访了两位在该领域有丰富经验 的律师，分别是普衡律师事务所Vivian Lam 和万盛律师事务所的 Hayden Flinn，以了解 业内资深人士对中国房地产投资信托基金前 景的判断以及发展定位。 Vivian Lam 是普衡香港办公室合伙人，近 www.legalbusinessonline.com
China are keen to avoid having REITs become speculative products. PBC, for example, has stated that China should avoid copying overseas REITs because some of them are too complicated and not right for China. If the authorities are successful in developing PRC REITs as safe, simple and transparent products, then it should appeal to many retail as well as institutional investors like insurance companies, and would be beneficial for the healthy and sustained growth of the Chinese REIT market,” Lam says. When – or if – the first REITs do appear, Flinn believes that their perceived success will have a massive impact on whether or not they become a fixture in the Chinese investment landscape. Like Lam, he notes that the Chinese authorities have been concerned about certain aspects in the way REITs have operated in other places (most notably in Hong Kong) – particularly in regard to their financial structure. That said, he sees no reason why REITs shouldn’t take off in PRC in the medium to long term. “At the moment there’s not a great deal of transaction volume globally and there’s probably not the current interest in [PRC-based] REITs that there used to be,” he says. “But I see no reason in the medium to long term why REITs wouldn’t be successful in China. In the short term though, everyone’s struggling to predict what will happen, given current economic conditions.” ALB
期曾为睿富中国商业房地产投资信托基金、 嘉茂零售中国信托基金和越秀房产信托基金 提供法律顾问服务。她还曾参与其它多个与 香港和中国房地产相关的房地产投资信托基 金交易以及计划上市项目。 她认为： “房地产投资信托基金已经获得国 务院最高领导人的认可。人民银行和证监会 也已投入大量时间研究各种方案。目前市场 普遍预期，试点计划可能于今年第二季度宣 布，但监管机构还需要更多时间调整管理法 规，因为监管机构希望该基金健康发展，为 本地市场作出积极贡献。” 不过，万盛香港合伙人 Hayden Flinn 透 露，尽管政府最终定会推出房地产投资信托 基金，但准确判断该计划何时实现仍困难重 重。他认为： “监管机构探讨该信托基金已历 时数年，但仍未拿出切实可行的方案。” Flinn 认为，要想让方案得以实现，中国的 13
NEWS | analysis >>
监管机构必须发挥主导作用。不过，这并 非意味着希望参与大陆房地产投资信托基 金的潜在投资人对此毫无兴趣。只不过这 种兴趣持续多年，鉴于目前国际投资人更 青睐稳定市场，因而对中国市场的兴趣有 所下降。他表示： “受全球金融危机影响， 投资人目前更倾向于稳定成熟的市场。新 加坡、香港和澳大利亚的法律框架更为稳 定，因而风险更低。” Vivian Lam 还透露，投资人、开发商、 本地信托公司和基金管理公司对大陆房地 产投资信托基金兴趣浓厚。她表示： “我 们正在为部分“潜在的房地产投资信托基 金”提供顾问服务，帮助其优化产品方案。 房地产投资信托基金为投资人和开发商提 供全新业务渠道，中间机构亦有兴趣参与 房地产投资信托基金管理。但准入门槛可 能相当高，至少在方案执行初期，监管机 构可能会推出少数精心策划的项目以测试 市场反应，并按照循序渐进且可控的方式 推动市场发展。” Lam 认为，监管机构担心海外模式可能 不适合中国经济环境，因此启动日期将会 继续推迟，她表示： “从政治角度出发，中 国监管机构极力避免房地产投资信托基金 成为投机产品。例如，中国人民银行曾表 示，由于部分海外模式过于复杂且不符合 中国国情，应尽力避免复制海外房地产投 资信托基金模式（鉴于“金融工程”和房 地产相关衍生产品投资）。如监管机构能 成功推动中国房地产投资信托基金发展， 使其成为安全、简单且透明的产品，将会 吸引诸多零售机构和保险公司等机构投资 人的青睐，也将令中国房地产投资信托基 金市场的健康和可持续发展获益匪浅。” Hayden Flinn 相信，首个房地产投资 信托基金启动后，如按照预期获得成功， 无论能否成为中国投资领域的固定产品， 都将为市场带来巨大影响。与 Lam 一 样，Hayden Flinn 指出，中国监管机构关 注其它地区（尤其是香港）房地产投资信 托基金运作的特定方面，尤其关注金融结 构方面的问题。他认为，中国房地产投资信 托基金在中长期内实现理所应当。他说： “ 目前，全球市场并无大量交易，可能市场对 中国房地产投资信托基金的关注也与以往 不同。但我坚信，在中长期内，房地产投资 信托基金定会在中国取得成功。”
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Analysis >>
Bond issue increase may have lasting effect on practice Due to the lack of A-share IPOs over the past few months, businesses have turned to bonds – forcing firms to change the way they do business
T
he nine-month hiatus on A-share initial public offerings (IPOs) may have taken away an obvious source of income for Chinese corporate law practices. But things are not all bad – companies still need to raise capital and have increasingly been turning their attention to bonds. Chinese businesses issued RMB384.5bn of corporate bonds (and bills of one year and above) for the first four months of 2009, compared to just RMB67.7bn a year earlier, according to Reuters. One lawyer who has benefited from the surge in bonds issuance is Ye Beicheng, a Beijing-based partner at Zhong Lun. Ye says there have traditionally been five key bond products in China – enterprise bonds, corporate bonds, financial bonds, mid-term notes and commercial
paper. However, because the China Securities Regulatory Commission (CSRC) suspended corporate bond issuance in the third quarter of 2008, there has been no corporate bondrelated work this year. Instead, it has been mid-term notes and enterprise bonds which have had clients beating a path to his door. Zhong Lun has advised on four major debt raising projects in the first half of this year – including the RMB5bn enterprise bond issuance by China Resources – and the firm is currently involved in six further bond issuance projects. And while Ye sees a direct correlation between the suspension of A-share IPOs and the increased number of bond issuances, he does not think that the work will dry up now the suspension has been lifted – not least because it is often a different type of client that is attracted to bonds. ISSUE 6.6
NEWS | analysis >>
“The number of bond issuances certainly will decrease,” he says. “However, commercial banks make up the majority of bond investors in China and they are prohibited from investing in the stock market. So I think that the impact of a resumption in A-share IPOs will not be drastic. To my understanding, issuing mid-term notes and commercial paper has become a viable alternative to mid-term and shortterm bank borrowing.” The spike in bond-related work has also seen White & Case recently advise Greentown China Holdings as issuer’s counsel in connection with the cash tender offer and consent solicitation for its US$400m (RMB2.73bn) of senior notes due in 2013. Greentown, which develops luxury residential properties in PRC, offered noteholders who tendered and consented by the consent date a total consideration of US$850 for every US$1,000 of principal
amount outstanding of its notes. Approximately 92% of noteholders consented. While other Chinabased companies have sought to undertake tender offers and consent to solicitations in recent months, Greentown was the first to secure the overwhelming support of investors. The partner who led the deal for White & Case, Anna-Marie Slot, sees the deal as a benchmark for future work, should the GFC continue. “This tender offer and exit consent demonstrates that Chinese companies can successfully use such transactions to help restructure their capital structures and potentially increase financial flexibility during the current credit crisis,” she says. So it seems that while the suspension of IPOs may have forced Chinese companies to look for alternative methods of raising capital, some may have a lasting impact on the way they – and the lawyers that advise them – continue to do business. ALB
“I do not think that the impact of a resumption in A-share IPOs will be drastic. To my understanding, issuing mid-term notes and commercial paper has become a viable alternative to mid-term and short-term bank borrowing” ye beicheng, zhong lun
律所债券业务将持续稳步发展 A
股市场首次公开发售（IPO）暂停九个月造 成法律业务收入来源显著减少。由于仍 需募集资本，越来越多的企业转向关注债券 发售。 自去年下半年以来，发行债券已成为颇受 企业青睐的融资方式，据路透社报道，仅在 2009年前4个月内，中国企业已经发售高达 3845亿人民币的债券（一年期或更长期限的 债券）。去年同期，该数字仅为677亿人民币。 债券发售量激增令诸多律师事务所获益匪 浅。中伦律师事务所合伙人叶倍成透露，中 国现有五大债券产品，分别为企业债券、公司 债券、金融债券、中期票据和商业票据。由于 中国证监会（CSRC）于2008年第三季度暂停 公司债券发售，今年并无与公司债券相关的 业务。而中期票据和企业债券业务令他和他 的团队应接不暇。 今年上半年，中伦曾为四个重大债券融资项 目提供顾问服务，其中包括华润集团规模达 50亿人民币的债券发售，中伦还将在短期内 参与至少六个债券发售项目。尽管A股IPO暂 停与债券发售激增存在直接关系，但叶倍成 认为，IPO重新开始发行后并不意味着债券发 售业务面临萎缩。原因之一在于，有意选择债 券的投资人属于不同的公司类型。 他表示： “债券发售的规模肯定会有所下 降。不过中国的商业银行是最主要的债券投 www.legalbusinessonline.com
资人，且国家禁止商业银行投资股市。因此， 我认为恢复A股IPO后，债券发售不会受到太 大影响。在我看来，发售中期票据和商业票 据已成为中期和短期银行借款可行的替代 方式。” 伟凯律师事务所近期作为发行人法律顾问 为绿城房产提供服务的项目即是债券相关 业务蓬勃发展的印证。该项目涉及对2013年 到期的9％高收益债券的现金回购和同意请 求，价值达4亿美元（27.3亿人民币）。绿城房 产在中国主要开发豪华住宅项目，该集团向 于同意日期之前接受出价并同意的票据持有 人支付每1,000美元本金票据850美元的投资 回报。约92％的票据持有人对该方案表示同 意。目前，还有数家中国公司有意在近几个月 内进行股权收购和同意请求，绿城率先获得 投资人的空前支持。 担任伟凯业务团队负责人的合伙人 AnnaMarie Slot 认为此项交易预示该业务领域 拥有良好发展前景。她表示： “此次债券回购 的成功表明中国公司能够利用此类交易方式 重新调整资本结构，在当前信贷危机的背景 下拥有提高财务灵活性的潜力。” 这样看来，暂停 IPO 迫使中国企业寻求 替代性融资方法的同时，也为企业和律师 事务所以全新方式保持业务发展带来长期 影响。 15
NEWS | news >>
news in brief >> top firms line up for Rio Tinto deals Following the termination of the US$19bn ChinalcoRio Tinto deal, Rio Tinto will now enter into two deals worth more than US$20bn – a proposed US$15bn rights issue and a 50:50 JV with former merger partner BHP Billiton, valued at more than US$10bn. Allens Arthur Robinson is acting on the US$15bn rights issue as Australian counsel to Rio Tinto, alongside Linklaters as UK and US counsel, while Freehills is representing the underwriters. Herbert Smith and Davis Polk & Wardwell are acting as underwriters’ UK counsel and US counsel respectively. The JV with BHP Billiton will combine the two mining giants’ iron ore operations in Western Australia’s Pilbarra region. Blake Dawson is acting for BHP, with Rio represented by Allens.
澳洲律所继续参与力拓新交易
继中铝－力拓价值190亿美元的交易终止后，力拓现参与 两项全新交易，价值超过200亿美元，包括增股交易计划 以及与 BHP Billiton 进行 50:50 合资项目。 安德慎作为力拓的澳大利亚法律顾问参与150亿美元的 增股交易，年利达则作为英国和美国法律顾问，Freehills 作为承销商法律代表。史密夫和达维分别作为承销商的 英国和美国法律顾问。 力拓与 BHP Billiton 的合资计划将整合矿业两巨头在 西澳大利亚 Pilbarra 地区的铁矿石业务－价值超过100 亿美元。在该项目中，Blake Dawson 担任 BHP 的法律 代表，安德慎担任力拓法律代表。
>> Office vacancies in China, as of the end of the first quarter of 2009, are 14.2%, up 9.1% since the peak. Pudong has 23.6% of its premium space empty and rents across Shanghai are down by nearly a quarter SOURCE: Jones Lang LaSalle Fried Frank HK head to lead Law Society Fried Frank’s Hong Kong managing partner, Huen Wong, has been appointed president of the Law Society of Hong Kong. The vocal Wong succeeds Lester Huang and takes up his position as president with immediate effect. Prior to becoming president, Wong served on the Council of the Law Society of Hong Kong as a member for nine years. He has been managing partner of Fried Frank’s Hong Kong office since it opened at the end of 2006 and will continue to serve in this role alongside his presidency.
Fried Frank 香港办事处主管合伙人担任香 港律师会会长
Fried Frank 香港办事处主管合伙人王桂埙出任香港律 师会会长。王桂埙将成为香港律师会20人理事会负责 人，该香港律师专业机构拥有法定权力，可监管律师的 职业行为。 王桂埙接替黄嘉纯担任该职位，立即生效。担任律师 会会长之前，王桂埙曾担任香港律师会理事会成员长达 九年，其中五年担任副会长。自 Fried Frank 香港办事 处2006年底成立以来，王桂埙一直担任主管合伙人，担 任会长期间仍将在 Fried Frank 任职。
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Middle East >>
Zhonglun W&D unveils plans for Riyadh branch
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oinciding with the Middle East visit of Wu Sike, China’s new special envoy to the Middle East, Zhonglun W & D has announced its plan to launch a branch office in Riyadh, the capital city of Saudi Arabia. The plan to gain a foothold in the region’s nascent legal market came just one year after the firm established its Middle East practice group in Beijing. The new Riyadh office will be led by the director of the firm’s Middle East group, Ahmad Kusayer, and initially will be staffed by local lawyers only. It will provide legal services to both Chinese clients doing business in the Middle East and clients from the Middle East investing in China. “We find special need for our commercial connections and our market understanding in opening doors for our Chinese clients to penetrate the Middle East market efficiently without wasting much time, energy, and resources,” Kusayer said. “Development projects are among our hottest issues so far. Most of our clients are keen about the vastly growing construction market, mining market, and cement market in addition to oil and oil products, projects and purchases.” However, penetrating the Middle East market is challenging to both clients and firms. Kusayer pointed out that the key to develop a solid presence there is to have proper connections. “Having an office in Middle East in itself is a very expensive investment that may not be feasible at this stage since there are many small Arabic countries in the Middle East each with their own legal bodies, procedures, and key figures. Knowing who to deal with and how to deal with them is key,” he said. As China is expected to be among the first to recover from the effects of the global financial crisis, Zhonglun W & D sees plenty of opportunity ahead in the region for its Chinese clients. “As the main global supplier of oil, gas and petrochemicals, the Middle East is rich in opportunities and projects.
But for a very long time, the region has been exclusively manipulated by Western mega-companies, who tried hard to ensure that entering this market is difficult for others,” said Kusayer. “Due to the ongoing political and financial hard times in the West, we feel it is a great time for our Chinese partners to establish themselves.” Significant potential exists in the Middle East that has not yet been explored by Chinese companies due to the difficulty of penetrating the market. Zhonglun W & D’s Riyadh office is set to leverage its knowledge and connections to navigate its clients through different culture, legal system, politics and business practices and to ensure their continuous prosperity. The Riyadh office will be Zhonglun W & D’s second overseas office and will be the first branch office of a PRC firm in the Middle East region. The firm opened an office in London in 2006, which was also the first for a PRC firm. ALB ISSUE 6.6
NEWS | news >>
中伦文德在沙特首 都设立分所
中
伦文德律师事务所成立中东业务部门 一年之后，其中东业务发展又迈出坚 实一步。该所近日宣布已决定在沙特阿拉伯 首都利雅得成立分所。 全新利雅得分所将由中东业务主管 Ahmad Kusayer 担任负责人，初期计划仅聘请当地 律师。该分所将为在中东地区开展业务的中 国客户和赴中国投资的中东客户提供服务。 Ahmad Kusayer 表示： “我们在当地的商 业联系以及对市场的了解可帮助中国客户快 捷有效地进入中东市场，节省他们的时间、精 力和资源。目前，多数国内客户对该地区快速 发展的建筑市场、矿业市场、水泥市场、石油 及石油产品项目和采购兴趣浓厚。” 不过，进入中东市场对客户和事务所而言 均充满挑战。Kusayer 指出，在中东市场获 得稳定份额的关键在于是否在当地拥有稳固 的社会资源和业务关系。 Kusayer 表示： “由于中东地区阿拉伯国 家很多，且都有自己独特的法律体系和操作 流程。在中东成立办事处可谓是成本高昂的 投资，现阶段可行性并不太高。深入了解各地 市场行情以及拥有广泛社会关系资源是成功 的关键。” 由于中国可能率先从全球金融危机的影响 中恢复，中伦文德认为，中东地区将为中国客 户提供难得的发展机遇。 Kusayer 表示： “中东地区云集全球重要 的石油、燃气和石油化工制品供应商，可提 供丰富的发展机会和项目资源。但这些供应 商长期受西方大型企业的控制，且西方企业 竭尽全力提高该进入地区市场的门槛。由于 西方目前面临政治和经济的艰难时期，我们 认为，当前是中国合作伙伴进入该市场并赢 取市场份额的好时机。” 中东地区拥有巨大发展潜力，由于进入市 场困难较大，中国企业尚未充分开发该市 场。中伦文德利雅得分所旨在充分发挥其在 当地的社会关系优势，帮助客户了解本地文 化、法律体系、政治和商务模式，确保中国客 户取得成功。 利雅得分所是中伦文德在海外的第二个分 支结构，同时也是中国律所在中东地区开设 的首个分支机构。2006年，该所在伦敦成立 分所，开创中国律师事务所先河。
“Due to the ongoing political and financial hard times in the West, we feel it is a great time for our Chinese partners to establish themselves” ahmad kusayer, zhonglun W & D www.legalbusinessonline.com
uk report ‘New World’ may cost Linklaters millions Recent reports suggest Linklaters may have to dish out approximately £50m in compensation to partners who will be leaving the firm as part of the ‘New World’ restructure. The move will see the firm streamlined into a smaller, more profitable business, but will see around 50 partners – nearly 10% of the global partnership – shown the door, albeit with an exit package rumoured to be one year’s pay. With average earnings per partner around £1.1m in 2008, the firm could have a hefty bill on its hands.
124 jobs slashed, including 24 lawyers, while Berwin Leighton Paisner has launched a similar program, set to affect 85 people – 30 lawyers and 55 support staff – in its London office. CMS Cameron McKenna has launched its first full redundancy consultation along with a flexible working scheme – dubbed ‘Flex’ – for remaining employees which allows staff to take part-paid secondments, sabbaticals and four-day weeks. The redundancies are likely to affect approximately 20 lawyers and 60 support staff.
Addleshaws implements four-day week Addleshaw Goddard recently asked its fee-earners to cut down to a four-day week on 85% pay, as the firm struggles to stay afloat amid the economic turmoil. The proposed arrangement will operate for a 12-month period from 1 July, pending approval from the majority of lawyers at the firm. In addition, the firm is requesting fee-earners to volunteer to take additional leave on 30% of salary in blocks of four, eight, 12 and 26 weeks. Flexi-working schemes and a salary freeze at 2008-09 levels for all fee-earners and business services staff until 2010 have also been introduced in an attempt to minimise redundancies.
Simmons & Simmons, Baker & McKenzie and Milbank Tweed Hadley & McCloy have also finalised redundancy consultations, laying off 91, 70 and 49 people respectively. Shoosmiths launched a redundancy consultation in May that is likely to see 69 jobs cut, while Blake Lapthorn has launched its third redundancy consultation in nine months, with 33 positions on the line.
Credit crisis continue to bite UK firms continue to crumble under the weight of the credit crunch, with DLA Piper, Berwin Leighton Paisner, CMS Cameron McKenna and Simmons & Simmons just some of the firms to report redundancies recently. DLA’s redundancy consultation concluded with
A&O delays trainee start dates Allen & Overy is the latest Magic Circle firm to request its future trainee solicitors push back their start dates. The firm is offering a grant of £9,000 for deferrals of 12 months and £4,500 for six months to its future joiners, who are due to start between September 2009 and September 2011. An additional “good causes award” of £2,000 for 12 months or £1,000 for six months may also be offered to those who take part in pro bono work or further study.
ROUNDUP • Andrew Lilley is set to succeed former Travers Smith managing partner Chris Carroll • Mark Kirsch, global head of Clifford Chance’s litigation team, has resigned from the firm in the midst of it partnership restructuring. The reshuffle will alter the focus of the US litigation practice to regulatory matters, investigations and white collar crime, commercial litigation, antitrust, and arbitration • Taylor Wessing has formed an alliance with seven-partner Polish law firm BSJP. The exclusive alliance formalises a five-year-old referral relationship with the Warsaw-based firm • A four-partner litigation team from Clifford Chance’s New York office recently left the Magic Circle firm to launch Chaffetz Lindsey – a boutique that specialises in arbitration, reinsurance and litigation work • Linklaters has named Fabrice de La Morandiere as the firm’s new Paris head of corporate. He takes over from Marc Loy • Karen Abbott has succeeded London senior partner Sean Connolly as Mayer Brown’s new head of insurance and reinsurance in London
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NEWS | news >>
news in brief >> Conyers boosts cayman litigation Conyers Dill & Pearman has boosted its Cayman and BVI litigation practices in anticipation of a rise in litigation work. The offshore firm has appointed the first complaints commissioner in the Cayman Islands, Dr John Epp, and lawyer Monique Peters in the Cayman and BVI offices respectively. The addition of Epp is a strategic enhancement to the firm’s offering and the appointment of Peters will raise the number of BVI-based litigators to four. However, the firm is seeking to increase that number. “We anticipate the number of complex and substantive disputes to continue to grow, particularly in light of the newly established BVI commercial court,” said Mark Fort, head of BVI litigation. “We plan to double our BVI team by the end of this year, building on the successes we’ve achieved in our already prominent commercial litigation practice.”
康德明提升诉讼服务能力
鉴于诉讼业务预计将出现较大增长，康德明律师事务所 着力加强开曼和英属维尔京群岛诉讼业务团队。 该离岸事务所首次在开曼群岛任命纠纷专员，分别为 开曼和英属维尔京办事处的 John Epp 博士和 Monique Peters 律师。 Epp 博士的加入是对事务所服务实力的战略巩固，任 命 Peters 律师后，事务所在英属维尔京的诉讼律师达到 四人。不过，康德明仍有意继续扩大律师团队。 英属维尔京诉讼业务主管 Mark Fort 表示：“我们预 计，复杂和重大纠纷业务将继续增长，全新英属维尔京 商业法院设立后，该趋势将尤为明显。凭借康德明在商 业诉讼领域建立卓越声望，我们计划在年底之前使英属 维尔京办事处的业务团队扩大一倍。”
Barlow appoints HK and China chief UK firm Barlow Lyde & Gilbert (BLG) has appointed a new managing partner for Hong Kong and China. Long-time Hong Kong litigation partner David Smyth has been promoted to the role, succeeding Camille Jojo, who recently left to join Norton Rose. Prior to Smyth’s appointment, the firm relocated two London partners, John Hanson and Mert Hifzi, to its Singapore office. The firm also recently hired Lisa Foley in Hong Kong to be its first ever chief operating officer for Asia. BLG senior partner Simon Konsta said the firm would continue to look to Asia for growth. Currently, the firm has five offices in – London, Oxford, Hong Kong, Shanghai and Singapore.
博礼祈为香港和中国业务任命新主管
英国博礼祈律师事务所任命在香港办事处长期工作的 诉讼业务合伙人 David Smyth 为该所香港和中国业务 的管理合伙人，接替近期转投诺顿罗氏律师事务所的 Camille Jojo。 任命 Smyth 之前，博礼祈将两位伦敦合伙人 John Hanson 和 Mert Hifzi 调至新加坡办事处。博礼祈香港 办事处近期还聘用 Lisa Foley 担任亚洲地区首位首席 营运官。 博礼祈高级合伙人 Simon Konsta 表示，事务所将继 续推动亚洲业务增长。目前，博礼祈在伦敦、牛津、香 港、上海和新加坡设有五个办事处。
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Cross-Strait >>
Taiwanese firms ready to enter Fujian
F
or two decades, Fujian has flourished on investment from Taiwan. And now the wealthy southern province will play host to branch offices of Taiwan law firms. In the mainland’s latest move to promote cross-Strait investment and cooperation, new measures have been announced allowing Taiwanese law firms to establish branch offices in Fuzhou and Xiamen, two major cities in Fujian province. Leading Taiwan firms are enthusiastic about this new opportunity to expand their reach to the vast mainland market. “Cross-Strait economic ties have been strengthened significantly in the past 12 months, and law firms on both sides are set to benefit,” said
CT Chang, a partner with leading Taiwanese firm Lee and Li. “This new development marks the beginning of a new era for the Taiwan legal market. We expect an important part of our revenue growth in the next few years to be driven by mainland companies investing in Taiwan.” In addition, the traditional restrictions on Taiwan companies investing in the mainland have been gradually lifted over the past few months and will be overhauled once the Cross-Strait Comprehensive Economic Cooperation Agreement is signed. Taiwanese firms, which have worked with many clients investing in the mainland for the past few decades, will be sought out by these clients to
台湾律所获准可在福建设分所
二
十多年来，来自台湾的投资令福建经 济蓬勃发展。如今，这个富饶的南方省 份将在历史上首次迎来台湾律师事务所的分 支机构。 中国大陆近期努力推动跨海峡的投资和协 作，全新举措将允许台湾律师事务所在福建 的两大城市福州和厦门设立分支机构。台湾 领先律师事务所对全新业务机会跃跃欲试， 希望把握在大陆市场拓展业务的机会。 台湾领先的理律法律事务所合伙人张朝栋 表示： “过去12个月内，海峡两岸的经济联系 显著巩固，两岸律师事务所均从中获益。全 新政策发展标志着台湾法律服务市场迎来全 新时代。”
大陆企业赴台投资被视为台湾事务所未来 业务增长的核心推动力。张朝栋表示： “在未 来数年内，我们希望赴台投资的大陆企业可 帮助事务实现收入增长。” 此外，在过去数月内，对台湾企业赴大陆投 资的原有限制逐步放宽， 《综合性经济合作 协议》签署后，原有限制将彻底松绑。过去数 十年内曾为赴大陆投资客户提供服务的台湾 律所将迎来更多业务机会，参与已有台湾客 户全新的投资、合资和其它交易项目。 据张朝栋透露，理律法律事务所合伙人对 成立大陆办事处兴趣浓厚，但最终决定还有 赖于详尽管理规定的公布，例如监管要求以 及允许大陆分支机构参与的业务范围。 ISSUE 6.6
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advise on a growing number of new investments, joint ventures and other business ventures. According to Chang, Lee and Li’s partners are interested in the possibility of having a branch office in the mainland, but the decision on whether to take the plunge still depends on details yet to be issued, such as regulatory requirements and the scope of business of the branch office allowed on the mainland. Although Taiwanese firms were banned from opening branch offices in the mainland in the past, a number have already begun to tap into the mainland market, mostly by setting up alliance consultancy firms that provide business consulting services. Lee and Li, for example, have alliance consulting businesses in Shanghai and Beijing. Pamir Law Group and Lee, Tsai & Partners are two other Taiwan firms with a similar business model in the mainland. “If the mainland branch offices of Taiwan law firms are allowed to advise on Taiwan law and provide legal services, the new initiative will be very attractive to Taiwan firms,” Chang said. While some uncertainty over the future of Taiwan firms operating in Fujian remains, the amount of Taiwanrelated legal work in Fujian, currently handled by Fujian firms, is certainly increasing. The latest statistics by the Bureau of Justice of Fujian province revealed that in the first five months of this year Fujian firms advised on over 800 litigation cases, around 330 arbitration proceedings, and more than 610 non-contentious matters – all of which involved Taiwan elements. ALB 虽然大陆未正式允许台湾律所进入大陆市 场，但是一些台湾所已经通过各种形式涉足 大陆市场，包括建立联营关系，或设立商业 咨询机构。例如，理律法律事务所已经在上 海和北京通过其附属咨询公司为客户提供商 务顾问服务。台湾的帕米尔国际法律事务所 和理慈国际科技法律事务所亦在大陆有类 似业务模式。 张朝栋表示： “如台湾律所的大陆分支被 允许提供台湾法律方面的顾问服务，对台湾 事务所而言将极富吸引力。” 福建省的涉台法律事务正不断增多，目前， 所有事务均由福建当地律师事务所处理。福 建司法厅近期公布的统计数据显示，在2009 年前5个月，福建律师事务所为800多个涉台 诉讼案件提供法律服务，参与约330宗涉台 仲裁案件以及610多宗涉台非诉讼事务。 www.legalbusinessonline.com
us report Dechert partners to take pay cut Dechert chairman Barton Winokur, along wth 36 other Dechert partners, is set to slash his own wages, according to reports. The pay cuts follow a fifth round of job cuts that were announced in March, with 125 lawyers and staff members laid-off worldwide. The firm also suffered a revenue fall of 2% last year to US$816m, along with a decrease in profits per equity partner (down 9% from US$2.35m in 2007 to US$2.14m in 2008). Wage cuts and compensation change at DLA DLA Piper has announced it will be cutting the salaries of 550 of its US-based associates and shifting compensation to a more merit-based system. The changes are to come into play around June and will see salaries for first-year associate salaries in major markets cut from US$160,000 to US$145,000, while first-year salaries in second-tier cities will drop from US$145,000 to US$130,000. Pay cuts for all other associates will reportedly be made on a case-by-case basis, depending on performance and class year. DLA follows a handful of US firms to have cut associate salaries recently, including Baker & McKenzie, Chadbourne & Parke and Nixon Peabody.
Reed Smith also revealed this month that it will be decreasing the pay of incoming first-year associates (whose start dates have been deferred until January 2010) to approximately 10% less than current levels. Hunton makes 2% of lawyers redundant Hunton & Williams recently saw redundancies which affected 2% of the firm’s lawyers and 6% of its staff across all practice areas and offices. Twenty-three associates and counsel and 64 staff in total were laid off in an effort by the firm to “better align itself with clients’ needs”. Hunton reported a 2.2 %increase in revenue in 2008, but profits per partner dropped 3%. Akin Gump eyes London expansion Following one of the strongest financial results of any US firm, Akin Gump Strauss Hauer & Feld is reportedly looking at a London litigation launch later this year. The Texas firm enjoyed an increase of 16% in PEP to US$1.4m and a 4% revenue rise to US$780.5m and has suggested that the move to cement itself as part of the UK legal lanscape is part of a wider international push for Akin Gump. The firm has offices in London, Abu Dhabi, Moscow, Beijing and across the United States.
ROUNDUP
• US firm Kilpatrick Stockton has closed its London office, following several partner departures from the City office over the past five years • Paul Maher, co-vice-chair of Mayer Brown, has officially resigned from the firm following an announcement in April that he would be taking a leave of absence to consider his options (see story p20) • Following an announcement in May, Clifford Chance has cut its US litigation group, with just six partners remaining at the firm’s New York office and seven in Washington DC • Cleary Gottlieb Steen & Hamilton has joined Clifford Chance in taking the lead role on the Bank of America’s (BoA’s) US$7.3bn sale of a 16% stake in China Construction Bank (CCB). BoA recently announced that it would sell its 3.5 billion shares of CCB in a bid to raise nearly US$35bn in capital • Dechert is set to launch in Moscow, following the hire of a five-partner team from US rival Chadbourne & Parke. The hires include the firm’s former Moscow and St Petersburg managing partner Laura Brank • Mayer Brown has elected the final five partners to its 12-member partnership board, completing the management team restructure. The quintet are: New York partner Jeffrey Gordon; Houston partner Bob Gray; Chicago partner Barry Machlin; and Nicholas Hunsworth and Patrick Wong from Hong Kong
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NEWS | news >>
Update >>
Region >>
Regulatory New guidelines may herald consolidation wave for PRC publishers
I
n 2003, the Chinese government embarked upon the restructuring of the print media industry. Publishing houses were encouraged to separate their operational functions from editorial functions. While the editorial functions had to remain wholly State-controlled, domestic and foreign private investment in the printing, advertising and distribution functions of print publications was encouraged. Several domestic and overseas listings and Chinese-foreign joint venture projects were implemented under this policy, but it did not fundamentally change the face of China’s media industry. On April 6, 2009, the General Administration of Press and Publication (“GAPP”) commenced a new phase of reforms by issuing the Guidance Opinion to Promote Further Reform of the Press and Publication System (the “Opinion”). In the Opinion, GAPP articulates its vision for creating large, financially strong and innovative publishing and media groups that can satisfy the public’s need for richer content and compete in the worldwide Chinese-language media market. The GAPP’s strategy includes the following key restructuring measures: • Publishers of books, audio-video products and electronic publications are to convert into corporations by the end of 2010, with publishers of periodicals to follow gradually. • Large publishing groups will be created by combining existing publishing houses with comparable businesses. Publishing and media companies with nationwide operations may become publicly listed, and large Stateowned enterprises are encouraged to become investors in or prior to the initial public offering. • Private and foreign capital may be used to strengthen the operational functions of print media. • Chinese publishers are encouraged to invest in, or cooperate with, overseas publishers of Chinese-language newspapers and periodicals and printing companies. GAPP officials have indicated that transactions under the Opinion must comply with currently existing law. Accordingly, Chinese publishers have to rely on State-owned enterprises if they seek to attract investment in their editorial operations, and foreign investment remains confined to advertising, printing and distribution businesses. However, this distinction is to some extent theoretical: Investment in the revenue generating parts of a media operation inevitably gives outside investors a measure of influence over major editorial decisions, and investors try to maximize this influence. By putting pressure on publishing houses to consolidate, compete and offer better content across multiple Hans-Günther media platforms, GAPP further incites Herrmann Chinese publishers to seek potential partners with relevant expertise, such as foreign strategic investors. Written by Hans-Günther Herrmann, counsel Peter Davies, associate Paul, Weiss, Rifkind, Wharton & Garrison Hong Kong Club Building, 12th Floor 3A Chater Road, Central, Hong Kong Email: hherrmann@paulweiss.com pdavies@paulweiss.com Ph: (852) 2536-9933
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Peter Davies
Salans Shanghai chief promoted to head of Greater China practice
T
hree weeks after announcing it would open a Hong Kong office, Salans has taken a further step to reinforce its presence in Greater China by creating a new regional management role. The firm has appointed Bernd Stucken, who has been the managing partner of the firm’s Shanghai office since 2007, head of its Greater China practice. He will remain as the Shanghai managing partner, with Matthias Mueller heading the Beijing office and Andrew Lui leading the Hong Kong office. Stucken will stay in Shanghai, the headquarters for the firm’s Greater China practice, and travel to Hong Kong and Beijing regularly. “It is a newly created role, and the main responsibilities of this role include ensuring the three offices are well integrated and developing an integrated China strategy,” Stucken said. Although the launch of the Hong Kong office and his new appointment come at a challenging time, Stucken does not see the global financial crisis as a major challenge for him as a managing partner. “Our China practice is not doing “Driven by changing too badly at the moment. We are relatively better client demand, we are positioned than some of our shifting our business UK and US competitors. model from advising While we have experienced a slowdown, the revenues in on FDI, M&A and China for the first quarter of investment in real 2009 still went up by 5–10% compared to the same period estate to focusing last year,” he said. mainly on restructuring Stucken has placed and arbitration” managing business bernD stucken, Salans changes at the top of his agenda for the next 12 months. “Driven by changing client demand, we are shifting our business model from advising on FDI, M&A and investment in real estate to focusing mainly on restructuring and arbitration,” he said. “Managing this process is quite challenging as these new practice areas require different skill sets. We are cautiously hiring and also looking to relocate lawyers with the right skills and experience to China from other offices.” While instructions in restructuring and arbitration will be the main growth drivers for Salans’ Greater China practice over the next few years, Stucken expects outbound M&A by Chinese companies into Eastern Europe and Central Asia to contribute to the growth of the firm’s other offices worldwide. “There is an opportunity for Salans to advise on more outbound investment of PRC companies. We have received an increasing number of enquiries from Chinese companies that are interested in investing in countries such as Russia and Kazakhstan, where Salans has a strong presence,” he said. ALB ISSUE 6.6
NEWS | news >>
Update >>
Insurance New Requirements for Travel Agencies’ Liability Insurance
T ►► Salans: quick facts • Founded in 1978 and based in Paris, France • Full-service international law firm • 750 lawyers globally operating from 21 offices • Strengths lie in emerging markets and former USSR countries, with offices in Russia, Ukraine, Kazakhstan and Azerbaijan • First China office – Shanghai – was opened in 2003. • Opened offices in Beijing in 2008 and Hong Kong in May 2009
胜蓝上海管理合伙人晋升为 首任大中华区业务主管
胜
蓝在宣布香港办公室即将开业的消息后不久，又宣布新设立了 大中华区管理合伙人职位，并任命由上海管理合伙人BerndUwe Stucken出任。此举旨在巩固其在大中华地区的市场份额。 Bernd Stucken 自2007年担任胜蓝上海办事处管理合伙人，被任 命为大中华区业务主管后他仍将兼任上海办事处管理合伙人，北京 代表处主管 Matthias Mueller，和香港代表处主管Andrew Lui一起 拓展大中华地区业务。上海将作为胜蓝大中华区业务总部，Stucken 将继续留在上海工作，定期往返香港和北京指导业务工作。 Bernd Stucken 表示： “大中华地区业务主管是新设立的职位，主 要负责确保三个办公室充分整合，执行统一的中国业务战略。” 尽管当前面临充满挑战的业务环境，Stucken 并不认为全球金融危 机是他担任主管合伙人的最大挑战。Stucken 表示： “目前，我们的 中国业务表现尚可。与部分英国和美国竞争对手相比，我们的处境相 对更好。尽管业务增速放缓，2009年第一季度中国业务收入与去年同 期相比仍增长5%－10%。” Stucken 认为，在未来12个月内，管理业务的变化是他工作的重 点。Stucken 表示： “在客户需求的推动下，我们正改变业务模式，将 业务中心逐渐由外商直接投资、并购和房地产投资领域，转向重组和 仲裁业务。由于全新业务领域需要不同的专业能力，管理这种转变的 过程充满挑战。我们在引进人才的过程中十分谨慎，计划主要从其它 分所调用专业能力和经验符合中国市场要求的律师。” 在未来两年内，重组和仲裁领域的业务将成为胜蓝大中华区业务增 长的主要推动因素，Stucken 还预计，中国企业赴东欧和中亚地区的 境外并购将为胜蓝全球其它分支机构业务增长做出重要贡献。 他表示： “胜蓝目前有机会为更多中国企业的境外投资提供顾问服 务。目前，咨询境外投资的中国企业不断增加，这些企业有意赴俄罗 斯和哈萨克斯坦投资，胜蓝在上述地区拥有较大的市场份额。” 胜蓝还计划将在北京设立俄罗斯业务部。 www.legalbusinessonline.com
he National Tourism Administration and the China Insurance Regulatory Commission have promulgated for public comment the draft Administrative Measures for Liability Insurance of Travel Agencies, which provide that travel agencies legitimately established in mainland China should buy compulsory travel agency liability insurance. According to the draft measures, the compulsory travel agency liability insurance should cover: • liability for compensation incurred by the travel agency during a trip due to the death of or injury to clients and damage to their property; • the agency’s liability to its employees if they are injured or their property is damaged; and • liability resulting from the agency’s negligence or fault from accidents, based on the findings of the courts or arbitration institutions. The measures provide that the coverage of the policy should be agreed by negotiation between travel agencies and insurance companies, based on: • the scope of the travel agencies’ business; • the risk management capacity; • local economic and social development; and • the needs of the agencies. • However, the compensation for injury or death should not be lower than RMB 200,000 per person. The premium for travel agencies’ compulsory liability insurance should be set by the market and should match the risk of the travel agency’s management. The insurance term should be one year. The travel agency should renew the contract prior to the expiration date of the policy. Otherwise, the Administrative Department on Travel Supervision or its authorized local offices will have the right to impose a penalty. Compulsory liability insurance for travel agencies is a way to allocate risk. On the one hand, it will ensure that clients are compensated for the cost of their medical expenses if they are injured during the trip. On the other, travel agencies will be protected from excessive compensation which can be hard to afford. In practice, however, problems will still exist. A premium decided by the market may have disadvantages - for example, different insurance companies may charge different rates for the same product. In addition, if there are variations in the premiums, most travel agencies will choose the cheaper policies as not all agencies have the same economic capabilities. Some smaller travel agencies will find it a burden to afford high insurance premiums. Dr Zhan Hao, Managing Partner Grandall Legal Group Beijing Office Tel: 010-65890699 Fax: 010-65176801 E-mail: zhanhao@grandall.com.cn Web: www.grandall.com.cn
Zhan Hao
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national >>
International Tax
Han Kun raids international firms to fuel nationwide expansion plans
Foreign-registered companies face China tax scrutiny
C
ompanies operating in China using foreignregistered structures to minimise onshore tax should be braced for more aggressive scrutiny from mainland authorities. Thousands of companies, from state-owned industrial giants to small foreign investment vehicles, which conduct most of their business in China, are incorporated or registered overseas for tax reasons. However, a series of recent rulings and guidelines issued by central and provincial authorities show foreign-registered vehicles are now coming under unprecedented scrutiny as overseas governments adopt international standards to help boost PRC tax revenue; following the G20 episode between French President Sarkozy and Chinese Premier Hu Jin Tao. As a result, scores of foreign private equity and hedge funds could face larger Chinese tax bills. China typically levies a 10 per cent capital gains tax on restructurings. A trio of recent rulings by provincial tax bureaus in Chongqing, Xinjiang and Jiangxi have implications for overseas special purpose vehicles used by foreign investors. In the Xinjiang case, the tax authority ruled that a company registered in Barbados should be liable for capital gains tax for an onshore disposal because it could not prove it and its directors were based in the Caribbean country and thus could not utilise a China-Barbados double taxation exemption. Such tax rulings show that PRC provincial tax authorities have become more alert to potential abuses of the tax system. Many observe that China’s tax practices are drawing closer to international practice.
PRC 10% withholding taxes on dividends
Overseas shareholders in some of China’s biggest companies also face paying a new dividend withholding tax. China’s State Administration of Taxation last month ruled that a 10 per cent dividend withholding tax would apply to all overseas-listed companies that have their major business operations concentrated in China and whose senior management is primarily based on the mainland. The new rules retroactively took effect on 1 January 2008 and tax experts said the country’s biggest companies would be affected. Dozens of “red chip” companies – based in China but incorporated and listed overseas – and institutional investors will have to make special arrangements to try and avoid the tax. The withholding tax will not apply to individual investors. The Hong Kong-listed shares of China Mobile were suspended last week for technical reasons relating to the new tax. Analysts believe some foreign investors, such as pension funds reliant on dividend payouts, would become more cautious about investing in red chips. By Debbie Annells, Managing Director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong www.azuretax.com, a member of AzureTax Group (Tel) +852 2123 9339 (direct line), (Main Line) +852 2123 9370, (Fax) +852 2122 9209 Registered with the Chartered Institute of Taxation for purposes of anti money laundering legislation.
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Debbie Annells
H
an Kun’s recent partner appointments are further testiment to the rise of mid-tier firms in the crossborder corporate legal services market. The Beijing headquartered law firm, established in 2004, has opened branch offices in Shanghai and Shenzhen, and appointed three new partners from Clifford Chance (CC) and Baker & McKenzie to head the expansion. In Shanghai, new partners Cao Yinshi and Hwang Leikang both joined from CC, where they were members of the firm’s corporate group in Shanghai. They are both experienced in advising multinationals, private equity and venture capital clients on their cross-border M&A transactions and FDI projects in China. Another new partner, Wang Jingliang, was previously with Baker & McKenzie’s IP group and will now be based in Han Kun’s Beijing head office. Before joining Baker & McKenzie, he worked for Huawei Technology as a senior IP counsel. As a dual-qualified lawyer – in China and the US – Wang has advised multinational companies on IP general strategy and enforcement in China. Han Kun has also added Wang Zhe as a counsel to its new Shenzhen office. Wang has solid experience in FDI, M&A, project finance and banking while working with Gide Loyrette Nouel and King & Wood. In 2008, Han Kun hired 14 new lawyers to serve its expanding clientele, which now includes Adobe, AsiaInfo, Ericsson, Huawei, Joy Mining, PCCW, Real NetWorks, Siemens, Symantec, Tishman Speyer and Volvo. The firm was recognised as one of the finalists for Rising Law Firm of the Year at the ALB China Law Awards 2009. ALB
汉坤新添两家分所和三位合伙人
汉
坤律师事务所近期的发展再一次见证了，在当前金融危机情况 下， 新兴律所在高端法律服务领域的竞争力日渐增强。这家 总部设在北京，于2004年设立的律师事务所,最近宣布三位新的合伙 人和一位资深顾问的加盟以及其在上海和深圳的办公室将于近期开 张。 新合伙人曹银石和黄磊康将主要在汉坤新设立的上海办公室工作。 加入汉坤之前，他们都是高纬绅律师事务所上海办公室公司业务部的 成员。两位律师均在跨国公司、私募股权投资和风险投资客户在中国 的跨境并购和外商直接投资项目的法律咨询方面具有丰富的经验。 合伙人王景亮从贝克﹒麦坚时律师事务所加入汉坤北京总部，并将 主要负责知识产权业务。加入贝克﹒麦坚时之前，他在华为技术有限 公司作为知识产权高级顾问工作多年。王景亮律师在处理跨国公司在 华的和知识产权业务，特别是知识产权策略和知识产权执法方面经 验丰富。 同时，该所吸引王哲律师作为资深顾问加入，他主要负责汉坤深圳办 公室的业务发展。王律师在外商投资、兼并收购、项目融资、银行业务 和复杂商业安排等领域有丰富经验。加入汉坤之前，王哲律师曾在金 杜律师事务所北京总部，和基德律师事务所香港办公室工作多年。 2008年里，汉坤一共增加了14位新律师，以保证为不断增长的客户 群提供高效服务。该所在2009年度ALB中国法律大奖上被评为“年度 最佳新兴律师事务所”奖项候选人之一。 ISSUE 6.6
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Sole Dutch firm in China takes four from rival
Singapore
M
中石油收购新加坡石油公司 — 引发强制要 约收购
any well-established Dutch companies – Shell, Philips and Heineken – operate in the mainland market, yet only one Dutch law firm has set up a representative office there – Holthuis International Lawyers (HIL). The firm recently expanded its China practice with the addition of a four-member Bart Kasteleijn team led by partner Bart Kasteleijn. The team HIL joined from rival Van Mens & Wisselink (VMW) in Amsterdam, where Kasteleijn served as head of the China desk prior to his departure. Kasteleijn adds both his China desk and his extensive international commercial practice to HIL. He also brings to the firm his contacts from De Industrieele Groote Club in Amsterdam (the leading Dutch business club), where he chairs the China Table. HIL now has 21 legal professionals based in Amsterdam and Shanghai, and has associate offices in Hong Kong, Taipei and Geneva. The full-service firm focuses its practice on corporate and employment law. “HIL’s small size makes us the ideal partner for foreign law firms without a legal presence in China,” founding partner Jan Holthuis said, adding that foreign firms can enlist HIL’s support instead of that of a large firm that might be a competitor in their own country. HIL’s Shanghai office was established in 2004 and is headed by senior partner Hugo Muller. ALB ►► Other Dutch firms in Asia Law firm
Offices
Loyens & Loeff
Singapore, Tokyo
Bloemers De Neree Advocates
Hong Kong
荷兰浩达律师事务所吸收新成员
壳
牌、 飞利浦和喜力等诸多著名荷兰企业均在中国大陆市场取得 成功，但仅有一家荷兰律师事务所在目前中国设有代表处，即 浩达国际律师事务所。 该所近日吸引由合伙人高仕林带领的四人律师团队加盟阿姆斯特 丹总部。高仕林带领的团队近日离开位于阿姆斯特丹的 Van Mens & Wisselink 律师事务所，并加入浩达。Kastelejin 离职前曾担任 中国业务主管。 此次随他加入的律师亦为VMW中国部的核心成员。 Kasteleijn 的加入将为浩达带来丰富的国际商业法律服务和中国业 务经验。他目前还担任阿姆斯特丹 De Industrieele Groote Club （荷兰著名商业俱乐部）的中国事务主席。 浩达目前在阿姆斯特丹和上海拥有21位律师，在香港、台北和日内 瓦有合作机构。该事务所提供全方位法律服务，业务重点为公司法和 劳动法。 创始合伙人 Jan Holthuis 表示： “由于浩达规模较小，对于在中 国没有设立机构的境外律师事务所而言，浩达是理想的合作伙伴。” 他还补充道，境外事务所可充分借助浩达的业务支持，无须与规模较 大的本国竞争对手合作。 浩达上海代表处成立于2004年，由高级合伙人 Hugo Muller 担任 主管。 www.legalbusinessonline.com
中
国石油天然气股份有限公司（下称“中石油”）2009年5 月24日宣布，通过下属子公司与新加坡吉宝集团下属 全资子公司吉宝油气服务有限公司达成附生效条件的协 议，将收购吉宝公司所持新加坡石油公司（Singapore Petroleum Company Limited）45.51%的全部股份，交易对价约合 10.2亿美元。本次收购也是该公司自金融危机爆发之后又一次大规 模的海外并购。这笔交易通过中国石油国际事业有限公司间接全资 拥有的中国石油国际事业新加坡公司完成。交易的现金对价为每股 6.25新元，共计约14.7亿新元，将于交易完成时支付全款。 据介 绍，本次交易的完成尚待中国监管部门批准。依据新加坡上市手册 的规定，预计交易将导致中国石油对新加坡石油公司其余股票的强 制性要约收购。 依据新加坡上市手册（LISTING MANUAL）交易标的的大小分 为以下几类： 1. 无需公告的交易，通常是指小于公司资产的5%时，该交易无需 公告； 2. 需要公告的交易，通常是指交易的标的大于5%，小于20%； 3. 重大交易，是指交易的标的大于20%时属于重大交易，该交易需 要得到股东大会在年度会议上的批准； 4. 非常重大的交易或反向收购。 依据新加坡收购法（Takeover Code）的规定，一旦收购方收 购了上市公司30%以上的股权，那么收购方就必须向剩余股份发 出收购要约。这也就意味着，一旦该收购获得交易双方监管部门 的通过，则中石油必将对新加坡石油公司54.49%的剩余股权发出 收购要约。如果完成收购新加坡石油公司剩余股权，新加坡石油 公司将退市。中石油的收购行为目前虽然没有获得中国监管部门 的同意，但是符合中国目前鼓励有实力的中国 企业并购境外企业的政策。新加坡是国际石油 交易中心，本次收购中石油更看中的应该是新 加坡石油公司所处的产业位置和地理位置，而 不是资源。中石油同时希望借此收购提升其在 资本运作和期货市场运作方面的实力，中石油 将会利用此机会，将新加坡作为融入世界能源 体系的平台。
锺振裕 企業融资部經理 Ph: (65) 6322-2232 Fax: (65) 6534-0833 E-mail: geraldcheong@loopartners.com.sg
锺振裕
陶丽 企業事務部法律顧問 Ph: (86) 13911000063 Fax: (65) 6534-0833 E-mail: taoli@loopartners.com.sg
俊昭法律事務所
88 Amoy Street, Level Three, Singapore 069907
陶丽
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NEWS | news >>
REITs Real Estate Investment Trusts In China
I
n order to reflect the impact of global economic recession and the slowdown of Chinese economy, the State Council promulgated “The suggestions to stimulate concurrent Chinese financial development.” One of the suggestions clearly stated “starts the experiment of REITs can be used to broaden real estate enterprises’ financing channels.” At the turn of this century, the Chinese academia, financial community, real estate community already started research on REITs. The following are the actions which the Chinese government took to promote REITs. • At the end of 2004, the China Banking Regulatory Commission initiated the research of basic institutional infrastructure of REITs. • At September of 2005, on the report of nationwide commercial real estate survey drafted by the Chinese Ministry of Commerce to the Chinese State Council, it stated the suggestion of using REITs to financing. • At June of 2007, The People’s Bank of China hosted symposia on REITs. During this Symposia, the National Development and Reform Commission, the Ministry of Finance, former Ministry of construction, former Ministry of Labor, the Banking Regulatory Commission, the Securities Regulatory Commission, and the insurance regulatory commission all show its interest and support of REITs. They advise that the Chinese REITs should follow the principle that the regulation and experiment of REITS should proceed parallelly. • At the same year, CITICS SECURITIES and UNION TRUST were chosen as the pilot work units of REITs. The People’s Bank also drafted the request of REITs experiment. • At April of 2007, the Securities Regulatory Commission formed a new research group focused mainly on REITs. • At the end of 2007, a research team was established by the Banking Regulatory Commission which consists of experts from various securities companies, ZhongLun W&D Law Firm, and top Chinese universities. • At August of 2008, the People’s Bank requested the Chinese State Council to commence the preparation of experiment of REITs. • At December of 2008, the city of TianJin reported its preparation of experimental REITs to the Chinese State Council. • At December the third of 2008, the Chinese State Council pointed out at one of its meeting that it will encourage enterprises to use REITs and other means to broaden its financing channels. • At December the thirteen of 2008, the Chinese State Council promulgated “The opinions on concurrent issues of using finance to stimulate economy.” Since 2005, as a professional legal institution, ZHONGLUN W&D LAW FIRM played a very important role in the process of promoting REITs in China. We are now providing legal service to the first Chinese REITs which will be listed at ShangHai Stock exchange.
Contact details: Address: 19/F Golden Tower, No.1, Xibahe South Road, Chaoyang District, Beijing, 100028, P.R.C Tel: 86-10-6440 2232 | Fax: 86-10-6440 2915/6440 2925 Website: www.zhonglunwende.com
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Cao Yadong
M&A >>
Shearman and Jun He drive Hummer to China
W
hile the world reels in shock at the bankruptcy of General Motors (GM) in the US, China’s Sichuan Tengzhong Heavy Industrial Machinery has seized an opportunity to buy the Hummer brand and its management team from the troubled automaker. Shearman & Sterling is acting as Tengzhong’s international legal counsel, while Jun He is acting as the company’s PRC counsel on the proposed acquisition. “There have been many opportunities and will continue to be opportunities in the US for foreign acquirors that have cash to buy relatively good assets at good valuations,” said Paul Strecker, a partner at Shearman & Sterling in Hong Kong who is working on the transaction with other partners in the firm’s Beijing and New York offices. The firm is also advising a number of other Asia acquirors looking at buying distressed assets in the US – the majority of whom are based in are China or Hong Kong. In addition to state-owned enterprises headquartered in Beijing and large private corporations based in the major economic hubs, mid-tier corporations are also emerging as a source of opportunities for international firms. “Chinese corporations in general, no matter where they are based, represent a good opportunity for international firms,” Strecker said. “What’s happening is that many mid-tier companies that have done well domestically in China are now looking to expand abroad. With strong buying power and a vision to go global, mid-tier acquirors represent a source of opportunities for international firms advising on cross-border transactions.” Under the agreement, Tengzhong will acquire the rights to the Hummer brand, along with a senior management and operational team. As part of the deal, Tengzhong will assume existing Hummer dealer agreements and is expected to sign a long-term contract assembly and component, and material supply agreement with GM. If the deal is successful, GM expects it to save more than 3,000 jobs, but the terms of the deal are subject to final negotiations. In 2005, Nanjing Automobile, which has now merged with Shanghai Automotive, acquired MG Rover, a major British car manufacturer that had filed for bankruptcy. Nanjing Automobile’s in-house legal team, led by the general counsel at the time, Wang Yaoping, worked closely with Herbert Smith’s London office to close the deal. ALB ISSUE 6.6
NEWS | news >>
谢尔曼•思特灵与君合协助腾中收购悍马
在
全世界仍为美国通用汽车破产感到震惊时，中国四川腾中 重工机械有限公司则把握良机，计划从通用手中收购悍马 （Hummer）品牌及其管理团队。 谢尔曼•思特灵担任腾中重工国际法律顾问，君合则担任该公司的中 国法律顾问，参与此次收购计划。 Paul Strecker 是谢尔曼•思特灵香港办事处合伙人，现正与北京 和纽约办事处其他合伙人合作参与此项交易，他表示： “在美国有大 量不可多得的收购机会，资金充足的境外收购方可以合理的成本收 购相对优质的资产。” 该事务所还为其他多个有意收购美国困境资产的亚洲收购方提供 顾问服务。其中多数收购方为中国或香港公司。 除总部位于北京的国有企业和位于重要经济枢纽的大型私营企业 外，中型企业也日益成为跨国律师事务所又一个业务来源。 Strecker 表示： “无论位于何处，中国企业在总体上都能为跨国律 师事务所带来难得业务机遇。目前，诸多在中国业绩卓著的中型企业 也在积极寻找海外扩张的机会。由于经济实力较强，且具备全球视 野，中等规模收购方可为跨国律师事务所在跨境交易领域的顾问业 务提供更多机遇。” 依据双方签订的协议，腾中重工将收购悍马品牌使用权以及高级管 理和经营团队。作为交易的组成部分，腾中将接手现有的悍马经销商 协议，预计将与通用签订长期外包装配、组件和原料供应协议。如交 易最终成功，预计通用将挽救3,000多个工作岗位。交易条款还有待双 方最后协商。 2005年，现已与上汽合并的南京汽车集团收购 MG Rover，该公司是 提请破产的大型英国汽车制造商。当时，南汽内部法律团队与史密夫 伦敦总密切配合完成交易。
Beijing >>
Freshfields swaps Potter for French
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eijing-based Freshfields partner Alex Potter is heading back to London next month and will be replaced by Nicholas French. Potter, who relocated from London in 2007 was involved in building up the office’s antitrust, competition and trade (ACT) practice. French, who is relocating from London, will co-head the firm’s China ACT practice with newly-elected partner Michael Han in Beijing and Hong Kong-based partner Connie Carnabuci. Recent work by the firm’s ACT practice in China includes its representation of Huiyuan in Coca-Cola’s failed US$2.5bn takeover bid – the first transaction blocked under the AntiMonopoly Law. ALB
富而德调回 Potter，French 继任 在北京工作的富而德律师事务所合伙人 Alex Potter 将于下月返回 伦敦。Potter 于2007年11月由伦敦调赴北京工作，参与组建北京办 事处的反垄断、竞争和贸易业务。Potter 原计划在北京工作一年，随 后工作时间延长至18个月。 伦敦合伙人 Nicholas French 将替代 Potter 赴北京工作，与 北京办事处新合伙人 Michael Han 和香港办事处合伙人 Connie Carnabuci 共同主管富而德的反垄断、竞争和贸易业务。 近期，富而德在中国参与的反垄断、竞争和贸易业务包括代表汇源 参与可口可乐出价25亿美元的收购交易，该交易最终未能成功，成为 首个受在反垄断法下被否决的交易。 www.legalbusinessonline.com
arbitration 强制中止违反国际仲裁协议的诉讼 – 新加坡 法院支持仲裁的最新判例
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加坡高等法院最近公布一份判决1，裁定中止一起违反 国际仲裁协议的诉讼程序。据判决书载明，原告（某新 加坡公司）和第三人（原告的母公司）与第一被告（德 国某制造公司）及第二被告（该德国制造集团新加坡公 司）分别签有数份协议（统称“和解协议”），两被告统称被告。和解 协议中有两份协议与该案有关，一则为原告与第一被告的，协议约 定合同适用德国法律，有关争议由德国某地法院管辖；另一则为原 告与第二被告的，协议约定合同适用新加坡法律，有关争议按照仲 裁开始时施行的《新加坡国际仲裁中心仲裁规则》进行仲裁。 原告以第一被告未及时付款构成对“全球性和解协议”的违约为由 向新加坡高等法院起诉后，第二被告遂以约定的仲裁协议为由向法 院申请强制中止诉讼程序、提交仲裁的传票。原告和第二被告均未 对仲裁协议提出异议，但是对仲裁程序适用的法律产生分歧。 第二被告称，双方签定仲裁协议时，意在提交国际仲裁，仲裁应 当适用《国际仲裁法》，因此法院应当强制中止所有与其有关的诉 讼程序，以便当事人将纠纷诉诸仲裁。 原告称，双方约定国内仲裁，应当适用国内《仲裁法》，所以 法院有权自由裁量是否应当中止诉讼；另一方面，如提交仲裁则 产生程序竞合，可能导致两者裁定结果不一致，故此不应当将其与 第二被告的纠纷提交仲裁，原告向法院主张与第一被告的诉争案 合并审理。 关于新加坡仲裁法律制度问题，法院认为，《国际仲裁法》和国 内《仲裁法》的主要部分均类似，差异之一在于允许法院介入仲裁 的程度不同。《国际仲裁法》规定法院应当强制中止诉讼；而国内 《仲裁法》规定法院可以中止诉讼，法院有一定的自由裁量权。仲 裁制度的基本原则是，只有在需要法庭介入仲裁的有限情形下，法 院才应该介入仲裁。 对于原告反对提交仲裁的理由，法院认为，竞合不是拒绝中止 诉讼请求的决定性理由，并列举了法院可以不予中止程序的四种情 形：1）诉讼和仲裁所裁定的问题紧密关联且相互产生实质性的影 响；2）因原告“引起”竞合；3）诉讼进展已过审前程序阶段；4） 不准许中止程序请求属于公正利益问题。法院认为该案不存在前述 情形，故不应当以程序竞合和裁定不一致的可能性为由拒绝中止诉 讼请求，而不予提交仲裁。 对于仲裁法律适用的问题，法院认为，当当事人营业地、合同的 主要义务履行地、争议的最密切连接地点为新加坡时，这些因素一 般是可以确定新加坡国内仲裁的性质，但是当事人仍然可以在《国 际仲裁法》与《仲裁法》之间选择仲裁协议的准据法。如果某机构 仲裁规则明示规定适用《国际仲裁法》 当事人可以通过明示选择 该机构的仲裁规则来选定《国际仲裁法》作为适用的法律。《新加 坡国际仲裁中心仲裁规则》就是一例，若当事人约定适用该规则， 其仲裁则视为国际仲裁，适用《国际仲裁法》。 法院最后认定，该案涉及的仲裁协议的准据法是《国际仲裁法》， 进而中止所有涉及第二被告的诉讼程序；即使法院有权拒绝中止程序 而且中止程序可能导致竞合，这也不构成拒绝中止诉讼的理由。 综上，高等法院裁定准许被第二被告中止诉讼程序的申请。 新加坡倡导仲裁及其他替代诉讼方式解决纠 纷。该案反映出新加坡法院对仲裁的态度：最 大限度的支持，最小限度的干预。 1 [2009] SGHC 77。
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
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NEWS | news >>
Cross-Strait >>
Jade & Fountain and K&L Gates act on first foreign IPO in Taiwan
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rray Networks’ recent IPO on Taiwan’s GreTai Securities Market has marked the beginning of a new era of cooperation between mainland law firms and their Taiwanese counterparts. Array Networks, headquartered in Silicon Valley, has its main operations located on the mainland. Its US$79m IPO on Taiwan’s emerging stock market is the first ever launched by a company based outside the island. Led by partner Scott Guan and Steven Huang, Shanghaibased Jade & Fountain acted as PRC legal counsel to the issuer, while the Taiwan office of K&L Gates advised the issuer on both international and Taiwan law. “This IPO is a reflection of the strengthening political and economic relationship between Mainland China and Taiwan, which may in turn serve as a further catalyst for Taiwan listings”, Guan said. “Although it is still not possible for companies registered in China to seek direct listing on the Taiwan market, for those companies with offshore structures that have Chinese backgrounds and/or operations, the GreTai market will be a new choice of venue for raising funds. Given the common language and culture of mainland China and Taiwan, such an option can be attractive.” ALB
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两岸律师共同协助Array Networks在台上市
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rray Networks 于近日在台湾证券柜台买卖中心上市，募得资金 7，900万美元。Array Networks 是首家在台湾的上市的非台湾 本土企业，同时也是首家主体业务在中国大陆的公司在台湾上市。上 海九州丰泽律师事务所和高盖茨律师事务所参与了Array Networks 在台湾的此次交易。 Array Networks在台上市反应了海峡两岸政治经济关系的进一步 缓和，也预示着可能将有更多的公司能够通过在台湾上市融得资金。
ISSUE 6.6
NEWS | deals update >>
mergermarket M&A deals update
www.legalbusinessonline.com
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NEWS | news >>
►► LATERAL HIRES Name
Leaving
Going to
Practice
Location
Scott Zhang
Kangxin
Deheng
IP
Beijing
Grace Li
Kangxin
Deheng
IP
Beijing
Sun Zheng
Zhenghe
Deheng
IP
Beijing
Mao Guowei
Jinmao Kaide
AllBright
Real estate
Shanghai
Gu Jinqi
Jinmao Kaide
AllBright
Real estate
Shanghai
Qiu Weixin
Jinmao Kaide
AllBright
Real estate
Shanghai
York You
Brilliance
Yao Liang
Corporate
Shanghai
Balbir Bindra
Sidley Austin
Gide Loyrette Nouel
Banking & finance
Hong Kong
Camille Jojo
Barlow Lyde & Gilbert
Norton Rose
Dispute resolution
Hong Kong
Jojo will be appointed to the newly-created position of head of Asian disputes. Norton Rose expects the disputes practice to grow further within the global business. Barlow has since replaced Jojo with litigation partner David Smyth. The firm recently announced that it is currently undergoing a redundancy consultation which will see around 49 staff cut.
诺顿罗氏任命亚洲纠纷解决业务主管
博礼祈律师事务所前香港办公室主管合伙人 Camille Jojo 携六位实力雄厚的博礼祈律师转投诺顿罗氏律 师事务所。 诺顿罗氏任命Jojo为亚洲纠纷业务主管。此次人才 扩充之后，诺顿罗氏的亚洲纠纷业务团队增至11位律 师，包括诺顿罗氏新加坡、上海、曼谷和香港办事处 现有的四位合伙人以及新增律师。 诺顿罗氏预计，受全球经济影响，律所纠纷解决业 务将持续增长。 Jojo离职后，博礼祈任命1995年便加入事务所的诉 讼合伙人 David Smyth 担任其香港办公室的管理合 伙人。博礼祈还宣布，近期正考虑执行裁员计划，预计 将辞退49位员工。
►► PROMOTIONS Name
Area lof law
New role
Organisation
Zhang Bing
Corporate, real estate
Partner
Gaopeng
Gaopeng
Gaopeng adds new partner to Shanghai Following the promotion of Jiang Jianjun earlier this year, Gaopeng has promoted another corporate lawyer, Zhang Bing, to partnership in Shanghai. Zhang joined Gaopeng’s Shanghai office in 2008 and had practised in Jiangsu for 10 years before joining Gaopeng. He is particularly experienced in providing general corporate and transactional legal services in the real estate sector. A few weeks before Zhang’s promotion, the firm appointed US-qualified lawyer Stephen Lou as a senior foreign counsel in its Beijing head office. Lou joins Gaopeng as a member of its international practice group. His practice involves international companies and cross-border transactions, including financing, FDI, franchising, M&A and general corporate matters. Prior to joining Gaopeng, Lou served as foreign counsel in the Beijing offices of King & Wood and Grandall.
高朋上海分所新增一位合伙人
高朋律师事务所近日提拔张兵律师为合伙人。张兵 律师于2008年加入高朋上海分所，此前他曾在几家 江苏律师事务所执业。张律师具有十多年的法律从 业经历，执业领域涉及建筑房地产、金融证券、公 司、投资并购等，尤其擅长建筑房地产诉讼及非诉讼 全程法律服务。今年早期高朋上海分所晋升了江建军 律师为合伙人。 与此同时，该所北京总部聘请美执业律师柳尧广 担任其资深外国法律顾问。柳律师的加入为高朋涉 外法律业务部注入了新的力量，其执业范围是国际 公司和跨国交易，涉及融资、外商直接投资，特许经 营、企业并购和一般性的公司法律业务。加盟高朋 前，他曾担任金杜律师事务所和国浩律师事集团事 务所北京分所的外国法律顾问。
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various
GLN
GLN adds partners, launches HK law service Gide Loyrette Nouel has appointed finance lawyers Colin Mercer and Balbir Bindra to lead its Asia banking & finance practice. Bindra joins the firm from Sidley Austin and Mercer will move between Gide’s London and Hong Kong offices. The firm said the Asia Balbir Bindra banking & finance practice will also be adding New York-qualified lawyers. The new appointments come at the same time as the firm obtained approval to provide Hong Kong and English advice, three years after opening the Hong Kong office.
基德新增合伙人并获准提供香港法律服务
基德律师事务所任命金融律师 Colin Mercer 和 Balbir Bindra 担任亚洲银行与金融业务主管。Bindra 进入基 德之前曾在盛德律师事务所工作，Mercer 将往返基德 伦敦和香港办事处工作。基德表示，亚洲银行与金融业 务还将新增具备纽约执业资格的律师。 与此同时，在香港办公室成立三年后，基德终于获 得提供香港和英国法律顾问服务的许可。高级合伙人 Pierre Raoul-Duval 表示：“新增香港和英国法律服务 符合事务所业务发展趋势，我们将为跨国客户提供无 缝平台，帮助客户在亚洲地区更好的开展业务。” Barlow Lyde & Gilbert
Norton Rose
Norton Rose grows disputes with Barlow hires Camille Jojo, the former Hong Kong managing partner of Barlow Lyde & Gilbert, has moved to Norton Rose with a six-strong team of Barlow associates.
Jinmao Kaide
AllBright
Jinmao Kaide founding trio join AllBright Less than two years after establishing Jinmao Kaide, three founding partners have left to join AllBright as senior partners. Mao Guowei, Gu Jinqi and Qiu Weixin were among nine partners from Shanghai Jin Mao who splintered off to set up Qiu Weixin Jinmao Kaide in 2007. They all focus on the real estate and construction sector.
三名金茂凯德创始合伙人加入锦天城
在成立一年多之后，金茂凯德律师事务所的三位创始 合伙人已离职并加入上海规模最大的律师事务所锦 天城律师事务所成为高级合伙人。 此次加入锦天城的合伙人分别是茅国伟、顾金其、 仇卫新律师。这三位律师均是金茂凯德律师事务所的 创始合伙人，原金茂律师事务所律师。他们的专业特 长都在于为客户提供房地产和建筑法律服务。 Brilliance
Yao Liang
Japan practice partner joins Yao Liang Experienced corporate partner York You has joined Shanghai Yao Liang from Shanghai Brilliance law firm. You, who earned a PhD from the University of Tokyo in 1994, has built a reputation for servicing Japanese and Taiwan companies investing in China. His practice York You focuses on commercial and corporate law, IP, and dispute resolution. “You’s expertise in Japan practice will be a valuable asset to the firm,” said Gu Yaoliang, founder and managing partner of Yao Liang. “As we are handling an increasing amount of crossborder legal work and international matters, You’s ISSUE 6.6
NEWS | news >>
appointment is fitting for the firm’s development.” You also serves as a part-time professor with the School of Law at Shanghai University of Finance and Economics.
尤宪迅律师作为合伙人加入耀良
资深法律从业者同时也是留日博士的尤宪迅律师近 日作为合伙人加入耀良上海团队。1994 年在东京大 学取得博士学位后，尤律师回国职业。至今，他已处 理了数百件与日资企业、台资企业有关的法律业务， 受到日资企业、台资企业的好评。在加入耀良前，尤 律师曾在上海光明律师事务所执业。 “尤律师加入本所在上海的律师团队后，将向本所 注入他对日本法律的广泛深入的理解”，耀良所主任 顾耀良律师说，“基于我们处理的越来越多国际化的 法律事务，我们需要像尤律师这样在这个领域有经 验的人加入到我们的团队。” 尤宪迅律师现任上海财经大学法学院兼职教授。 various
DeHeng
DeHeng adds to international IP practice
DeHeng has expanded its IP practice with the addition of three senior partners to its head office in Beijing. The new partners include Scott Zhang and Grace Li, who join from leading IP law firm Kangxin, and Sun Zheng, who was previously with China Zhenghe Intellectual Property Agency. Zhang, who has more than 24 years of experience
focusing on IP law, will head the firm’s national IP practice. He previously served as a senior partner and vice president of Kangxin. As a patent attorney, Zhang concentrates on patent prosecution, invalidation, licensing Scott Zhang and litigation. He has prosecuted thousands of patent applications related to inventions in mechanics, new materials, home appliances, telecommunication, computer science, and semi-conductor fabrication and devices. Li, an experienced patent and trademark attorney, has particular Grace Li expertise in trademark prosecution and litigation, IP custom enforcement, counterfeiting/ infringement investigation and trademark strategy counseling. Zheng specialises in handling patent prosecution, litigation and licensing in the area of mechanics Sun Zheng & electronics. “DeHeng already has a sizable IP practice. The next step is to significantly grow its resources and capabilities in handling IP matters for international companies in China and Chinese clients expanding overseas,” Zhang said.
德恒大力发展知识产权业务
近日，通过吸引三位新高级合伙人加盟，德恒大大增 强了其知识产权业务团队的专业实力以及代理涉外 知识产权事务的能力。 三位新合伙人分别是资深专利/商标代理人：章社 杲，孙征，以及李伟。作为有24年执业经验的资深专 利代理人，章社杲在专利申请，无效，许可，诉讼等 各领域有非常丰富的经验，技术背景是材料科学，机 械及自动化。在加入德恒前，他曾是北京康信知识产 权代理有限责任公司的高级合伙人以及副总经理。 目前，他是德恒知识产权部门的主要负责人。 孙征是位有22年执业经验的资深专利代理人，擅 长帮助国内外客户进行审查并代理各种专利申请， 无效，诉讼案件无数，其技术背景是通用机械及电 子。此前，他是华夏正合知识产权代理事务所的合 伙人。李伟则曾担任康信的高级合伙人和商标部经 理。她的专长在于代理商标申请，异议，撤销，行政 诉讼，知识产权海关保护，侵权调查诉讼等商标确权 维权案件无数。 章社杲表示：“德恒虽然已经设立了专门的知识产 权部门，但是还远不能满足德衡客户日益增长的需 求。德恒知识产权部门下一步的发展重点在于提供 国际化的知识产权法律服务，并且发展更多涉外业 务以及专利申请和审查业务。” 他还表示：“德恒拥有庞大的国内客户群，我们将 逐渐加强为大型的国内企业提供知识产权服务。例 如，帮助国内企业在海外申请专利、商标，在海外进 行诉讼和知识产权保护等。我们期待和更多海外知 识产权律师事务所展开合作。”
Time to treat concentration filing in China seriously: start with pre-filing consultations
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or years, concentration filing in China was treated as a nuance to be dealt with in an M&A deal. Filings were submitted with the sure expectation of being cleared. This is definitely changing, with the Ministry of Commerce (“MOFCOM”), the anti-monopoly authority in charge of concentration review, recently clearing some deals with restriction conditions and then blocking Coco-cola’s acquisition of Huiyuan. Although the decisions published by MOFCOM is still criticized as short and lacking details, they managed to stand through the scrutiny of competition lawyers worldwide and marks the turning point in China’s competition law practice. It’s time to treat concentration filing in China seriously. Bearing in mind that the Anti-Monopoly Law is still new, many issues are still uncertain, and the authorities are still on a learning curve, it is very important for undertakings involved in a concentration to keep a close eye on the evolvement of the authority’s practice, in which the pre-filing consultation is taking up more and more importance. A successful filing, in the eyes of the filing parties, means a speedy and straight-forward
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clearance, usually under a very tight time pressure to close the deal. Our experience tells that the non-compulsory pre-filing consultation procedures is a very effective means to facilitate that, as it provides a very efficient and convenient channel for the officials and the filing parties to communicate on different aspects of the concentration before the official filing is made. In our experience, filing parties may request to have both issue-specific consultation and comprehensive consultation. Any kind of consultation request may be submitted to MOFCOM in written form, and as long as the officials’ workload permits, they would normally accommodate such requests into their schedule. Issue-specific consultation can be requested at the very preliminary stage of a concentration to clarify the issues on whether the concentration falls within the threshold, how the industry may be defined, which entity should be the official filing party etc. Comprehensive consultation, on the other hand, is normally held immediately before the filing is to be officially made as an opportunity for the officials to have a quick but efficient review of the whole filing packages. When the parties go in for a comprehensive
Firm Profile
Guantao Law Firm
consultation, it is our experience that the most productive way is to go with a completed or almost completed submission packages at hand. This way, the officials can review the summary of the submission package, discuss with the parties on what to be improved or what to be further clarified, or simply request the parties to provide more information on certain aspects. Such comprehensive consultation may take place for more than once, and in many cases, at the end of a chain of well-planned consultations, the filing parties are highly confident that the submission package would be accepted once officially submitted, and many of the issues that are potentially risky to a successful clearance would have been addressed at a very early stage. Nobody can guarantee that a filing would not go into second stage examination, but even if they do, the parties would have had the early mover’s advantage through the consultations and would have had more time to sort out a solution to the potentially dealblocking issues. Written by Cheryl LUAN, Partner Guantao Law Firm Beijing Office Tel: +86 10 6657 8066 Email: cherylluan@guantao.com
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Feature | insolvency & restructuring >>
Across Asia, insolvency practices have now awoken from their hibernation – but is the same trend occurring in China?
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estructuring and bankruptcy have become hot topics – not least because since the Enterprise Bankruptcy Law came into force on 1 June 2007 they are now occurring much more regularly. Even so, in 2008 there were only an estimated 3,500 Chinese companies that formally filed for bankruptcy, despite an estimated 800,000 companies exiting the market – proof that insolvency and restructuring practices in China remain very different from most other parts of the world. So how
are insolvency, bankruptcy and restructuring practices evolving in light of the legislative changes and what does the future hold for lawyers practising in the area?
The impact of the Enterprise Bankruptcy Law
Guantao Law Firm partner Grace Yan runs a practice operating out of both Hong Kong and Beijing. The US- and China-qualified lawyer has recently been hard at work advising financial institutions on takeovers, receivership, restructuring ISSUE 6.6
Feature | insolvency & restructuring >>
the major reasons for the increase of the bankruptcy and restructuring cases, in our view, [is] that the scope of application of the new legislation has been expanded,” she says. “It applies to the insolvency of all types of businesses with legal-person status, including state-owned, private domestic and foreign invested enterprises. By comparison, before the introduction of the new legislation, the then bankruptcy mechanism was mainly used by state-owned enterprises. Furthermore, the current legal system for bankruptcy has been refined and improved and the relevant rules have been brought into line with the requirements of the market economy, under which the insolvent enterprises may have more opportunities to achieve restructuring or composition.”
Is restructuring still a foreign phenomenon?
and liquidation. “We are presently working on a couple of bankruptcy and restructuring cases, including acting as administrator for Kunlun Securities and Jianqiao Securities, and we are quite busy in this area,” she says. “Generally speaking, the number of bankruptcy and restructuring cases has tended to increase after the new PRC Enterprise Bankruptcy Law [EBL] came into force on 1 June 2007.” Yan says that the EBL gives bankruptcy law a universal rather than selective application. “One of www.legalbusinessonline.com
The universality of the new law was also noted by David Boitout, managing partner at the Shanghai office of Gide Loyrette Nouel. He has been practising in the field of Chinese insolvency and restructuring law for almost a decade and his practice specialises in cross-border M&A. Perhaps naturally, given his firm’s Parisian roots, Boitout’s client base has a significant foreign component, so he has found there has not been a spike in bankruptcy and restructuring work among his clients. Instead, recent work has tended to have been driven by two main factors: changes introduced to China’s tax regime, which have forced companies to restructure in order to save on tax costs; and changes to labour laws. “There has been a lot of concern from companies looking to reduce head count,” Boitout says. “We have worked with a lot of companies to organise and lay off employees or to implement some flexibility in terms of working conditions. What is interesting is that despite the fact there are new strict
and protective labour laws, due to the financial crisis, the Government and local authorities have been very open and [is] in favour of flexibility. You can now definitely discuss reduction of salary and arrangement of working hours, and there is a lot more flexibility than before.” That said, Boitout recognises that the global financial crisis has also had an impact. But, in his experience at least, it has not influenced “good” companies. “We have been required to close down some factories, but at least with foreign investors, the people who have decided to move out David Boitout, have been people Gide Loyrette Nouel whose businesses were not good before the crisis and this has been the trigger that has made them close down,” he says. Interestingly, he adds that where the GFC has had the biggest impact – on small Chinese-owned and exportdriven companies often located in the south – bankruptcy is still not seen as a very attractive option when business turns sour. “Although several thousand companies have closed down in China’s south, there has not really been a corresponding increase in insolvency work,” Boitout says. “Many company owners will close down a factory in a way that is not legal. They don’t file for bankruptcy or liquidation; they just close down. Beginning this year, the government has said that if you close down and exit China, you can be banned from doing business. Theoretically, you can be blacklisted – and that applies to local companies and foreign investors... Most foreign investors comply.” Guantao’s Yan is keen to point out, however, that it is not only foreign companies who have undertaken restructures in light of the new legislative regime. “It has been reported that certain foreign-invested 31
Feature | insolvency & restructuring >>
“As more and more enterprises become insolvent, their creditors or other relevant parties tend to seek restructuring and composition opportunities before the insolvent enterprises are declared to be bankrupt” Grace Yan, Guantao
enterprises in financial difficulties were successfully restructured during the insolvency proceedings,” she says. “On the other hand, there were 100% Chinese enterprises [without foreign investment] that sought restructuring during the insolvency proceedings. Our firm was also involved in restructuring matters. For example, we have participated in the restructuring of Daton Securities, a Chinese domestic company. It is also worth noting that since the new bankruptcy law became effective, foreign-invested enterprises and 100% Chinese enterprises are now faced with the unified bankruptcy regime and the same rules and procedures for restructuring are applicable to them.”
Negotiations
Even with the changes to the current legislation – and perhaps partly as a result of them – when a Chinese company files for bankruptcy, it does not necessarily mean that it will appear in the final statistics. Yan says before 1 June 2007, when bankruptcy petitions were lodged against certain enterprises and bankruptcy proceedings commence almost all such enterprises were finally declared bankrupt. However, she says, it is now quite different. “As more and more enterprises become insolvent, their creditors or other relevant parties tend to seek restructuring and composition opportunities before the insolvent enterprises are declared to be bankrupt,” Yan says. Boitout agrees that negotiation is a much bigger factor than it is in Western jurisdictions as the Chinese authorities want to see businesses stay afloat rather than go under and create unemployment. If a client comes to his practice “in trouble and fighting for liquidation”, Boitout says that the first step is to try to negotiate with creditors. “If for any reason there is no solution, then there is a chance to recover before the courts,” he says. “The legal framework is satisfactory for 32
liquidation, but the thing you must always take into consideration when engaging in a liquidation is to always negotiate with authorities.” Boitout adds that five or six years ago businesses tended to take a more aggressive stance, both legally and tax-wise. “But this is something that is changing,” he says. “The will of the authorities that enforce laws is stronger and now companies must be more careful when doing business.” As evidence of this, Boitout points out that the State Administration of Taxation now tends to control activities more than was previously the case and that, as a consequence, companies operating in China are placing greater emphasis on tax compliance. He also notes that there has been a dramatic increase in litigation from employees against employers. “This is new – just the last two years,” he says. “So companies Harvey Lau, must be more formal Baker & McKenzie in the way they manage their human resources because the courts tend to be in favour of employees.” All of these factors, he says, are driving clients to him for restructuring-related advice.
Still on the rise
Harvey Lau, a partner at Baker & McKenzie in Shanghai, says that while there has been an increase in bankruptcies over the past 12 months, he has not seen the same kind of surge in workflow as experienced by his colleagues in other parts of Asia. “We are expecting an increase in the number of distressed companies, but for the China market this trend is only at a very early stage,” he says. Foreign law firms are not permitted to act as an administrator in bankruptcy processes, but Lau notes that these firms can play an ISSUE 6.6
Feature | insolvency & restructuring >>
important role as legal advisors in the restructuring of distressed companies. This is due to their relevant experience elsewhere and in situations where the distressed companies have taken out cross-border loans governed by the laws of other jurisdictions. Although it is still early days for the new law and it will take time for the courts, lawyers and creditors to fully come to terms with the process, many lawyers are convinced that demand in this practice area will increase significantly. As Yan points outs, increasingly stable laws regulating the areas of insolvency, restructuring and bankruptcy will create more demand for lawyers – not only from companies in trouble but also from other interested parties.
“The demand for various legal services in insolvency proceedings has been increasing under the new legal framework on insolvency,” she notes. “The new bankruptcy law adopts the administrator regime and the lawyers may act as the bankruptcy administrator. In addition, lawyers may also act for the creditors, shareholders of the insolvent enterprisesp and new investors to restructure the insolvent enterprises in proceedings and render relevant legal services to them.” It seems that increased certainty in the area is providing comfort to lawyers as well as to the businesses they advise – even if it is not yet providing an increased number of bankruptcies on paper. ALB
“We are expecting an increase in the number of distressed companies, but for the China market this trend is only at a very early stage” Peter Boitout, Gide Loyrette Nouel
The Protection of the Rights and Interests of Offshore Right Holders in Bankruptcy of the Chinese Enterprises
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f a Chinese enterprise (“debtor”) files for bankruptcy, can offshore rights holders protect their interests under PRC law? Lately, many have asked this question. The answer is yes, and the following points from our recent experience demonstrate how.
I. Offshore Shareholders: i. Require the debtor to reorganize, not liquidate. Under the PRC Enterprise Bankruptcy Law (“Bankruptcy Law”), offshore shareholders can order the debtor to file for bankruptcy reorganization through a shareholders’ or a board resolution. If a creditor applies to put a debtor into bankruptcy liquidation, the offshore shareholders can pass a resolution requiring the debtor to apply to the court for reorganization, or a shareholder that has contributed one-tenth or more of the debtor's registered capital may file the application directly in its name. ii. Seek court approval to require the debtor in reorganization to operate under the supervision of an administrator and/or submit a restructuring plan. Finally, offshore shareholders can and www.legalbusinessonline.com www.legalbusinessonline.com
should vote on any draft reorganization plan that adjusts the rights and interests of capital contributors (e.g., by capital increase).
II. Offshore Creditors: i. Timely Declare Claims. Under the Bankruptcy Law, an offshore creditor should declare its claims according to the court established schedule. Otherwise, it cannot attend the creditors’ meeting or vote on major liquidation or reorganization matters. An offshore creditor may declare claims after the statutory filing deadline. However, its rights will be significantly curtailed. ii. Actively participate in creditors’ meetings and committees. If offshore creditors are many, consider jointly appointing a foreign creditors’ representative. iii. Lastly, vote on the draft plan for reorganization!
III. Offshore Bondholders: The recent experience of many holders of offshore Chinese bonds is instructive for future offerings. At the risk of stating the obvious, bondholders should ensure that an issuer’s bonds are secured
Firm Profile
Chen & Co
by the onshore debtor’s equity or assets. For bonds that are so secured, offshore bondholders enjoy the rights of an offshore creditor (see above) if the debtor files for bankruptcy. As has become painfully obvious, bondholders who ignore this advice do so at their own risk. Also, the bondholder should verify that all security pledges were properly completed and duly filed. In summary, contrary to popular belief, the Bankruptcy Law does protect offshore rights holders when an onshore debtor files for bankruptcy. However, the protections are effective only if these parties understand their position, fulfill the related obligations, and, as allowed or required, vigorously defend their interests. By Simon Chen Chen & Co. Law Firm mxchen@chenandco.com Shanghai Office Suite 1901 North Tower, Shanghai Stock Exchange Building, 528 Pudong Nan Road, Shanghai 200120, P. R. C Telephone: (8621) 6881 5499 Fax: (8621) 6881 7393/6069
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special report | Shandong 09 >>
Shandong 09:
Land of opportunity
The country’s second-richest province, Shandong, continues to offer business opportunities for local, national and international firms – despite the GFC
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greater number of highprofile transactions involving companies based in Shandong may be a major factor driving leading national law firms to set up in China’s second richest province. The increasing number of cross-border M&A transactions, like Haier’s recent US$121m investment in white goods producer Fisher & Paykel, and sizable IPOs including Shandong Chenming Paper’s US$410m Hong Kong IPO, are good reasons to have not just one but two full-capacity offices on the ground. King & Wood and Dacheng will soon become the first two Beijing firms to have an office in both Jinan and Qingdao
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– the two major commercial cities in the province. King & Wood first landed in Qingdao 12 months ago after acquiring a group of 25 lawyers and partners from local firm Mingfeng. It is set to launch its Jinan office in the next few months. Meanwhile, Dacheng, which opened its Jinan office in 2006, has just obtained approval to establish an office in Qingdao. The new office will focus on foreign investment, international trade and shipping practices. “Companies in Shandong have plenty of demand for legal services, especially for high-end and sophisticated services,” says Huang Tao, a partner at King & Wood. “Having strong service
►► Shandong in numbers (2008) GDP: US$446bn (2nd in China) Population: 94 million FDI: US$8.2bn Number of firms: 815 Number of lawyers: 9,315 Total revenue of law firms: US$146m (70% from litigation)
capacities on the ground enables us to work more efficiently and helps save costs for our clients.” Currently, Dacheng’s Jinan office handles mainly corporate, banking ISSUE 6.6
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influx of large Beijing, Shanghai and Guangzhou firms, but for those targeting high-end clients and legal work, the rivalry is well under way. Kang Qiao, headquartered in Jinan, has enjoyed a growing reputation, establishing itself as a leading advisor to many of the province’s large SOEs, public and private companies. As a result, it has had to compete against leading Beijing firms on some large projects and cases in recent years. “Local Shandong firms will face more competition from Beijing firms. That’s an inevitable trend,” says Cai Zhongjie, managing partner of Kang Qiao. However, Cai notes that the branch offices of Beijing in the city have not yet put any pressure on leading local firms.
“Local Shandong firms will face more competition from Beijing firms. That’s an inevitable trend” Cai Zhongjie, K ang Qiao
& finance, insurance and real estate work. As Shandong is a region with the highest density of large state-owned enterprises (SOEs), helping them with restructuring and transactions is also an increasingly important part of the office’s routine work. It is rare for national firms to have two branch offices in the same province, so the expansion of King & Wood and Dacheng in Shandong clearly spells out the growing importance of this nascent market.
Local firms on the up
Most local firms are not feeling the competition brought about by the www.legalbusinessonline.com
Most competition still comes directly from headquarters. Deheng has its origins in Qingdao and has grown to become Shandong’s largest law firm by both size and annual revenues. It currently has 125 lawyers, including 33 partners, across offices in Qingdao, Jinan, Beijing and Shanghai. The firm also has operations in Hong Kong, Seoul and Chicago. Its strong performance has cemented its position as ALB’s Northeast China Firm of the Year for two consecutive years. “As we have operations nationwide, we have to face competitors that are major firms from different cities and regions,” says Hu Ming, the
executive partner of Deheng. To gain a competitive edge, Deheng has developed a Beijing strategy, which will see it strengthen its Beijing office and increase its offering of high-end, international corporate legal services. In recent months, the firm’s Beijing office has moved into its new premises, located in CBD International Mansion, and has recruited a number of partners and lawyers with international experience. Liu Jiqing is one of the most senior members, having joined the firm as head of the international business group. Liu, a US-qualified lawyer, was formerly the resident partner and chief representative of Baker & Daniels’ Beijing office. But Shandong is not only becoming more attractive to national firms, international players are also looking with interest. Local firms have reported an increasing volume of communication and cooperation between them and their foreign counterparts. In 2007, Deheng was a founding member of the Sino-Global Legal Alliance (SGLA) with eight other leading local firms and Lovells. In recent years, it has established business relationship with leading firms in Korea, Hong Kong, and other important markets. “Since early last year, we’ve seen a clear increase in the number of foreign firms and other intermediates that are actively contacting us and trying to set up a referral relationship with us, mostly for Chinese companies’ outbound investments,” Hu says. “There is plenty of communication, but only a few deals have actually taken place. Our clients are still cautious about making outbound investment at the moment. But huge potential exists and will be brought into full play once the economy recovers.”
The effect of the GFC
Like many law firms around China whose growth has been driven by
►► ‘Big five’ in Shandong Firm Deheng （德衡） Kang Qiao （康桥） Qilu （齐鲁） Qindao （琴岛） Yao & Tai （亚和太）
Number of Number of Head partners associates office 33 92 Qingdao 20 75 Jinan 26 111 Jinan 17 73 Qingdao 12 60 Qingdao
Branches Jinan, Beijing, Shanghai Qingdao, Yantai, Linqi, Zibo Qingdao, Yantai Jinan, Weifang, Beijing Qingdao
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special report | Shandong 09 >>
advising on large transactions, leading players in Shandong have also felt the pinch of the global financial crisis. Contentious work and noncontentious matters have contributed almost equally to Kang Qiao’s total revenues over the past few years. But since the end of 2008, the firm has experienced a noticeable reduction in the number of transactions and 36
investment projects completed. “With less liquidity in the market and clients experiencing financial hard times, M&A deals and investment projects have been mostly put on hold,” Cai says. “We’ve also noticed some difficulty in getting payment from clients.” Deheng has experienced similar difficulties. “Just 12 months ago, M&A
transactions, foreign investment and IPO activity in Shandong were still very hot. But we’ve had a very flat 12 months in terms of transactional work,” Hu says. Meanwhile, instructions are increasingly coming in for commercial disputes, employment disputes, insolvency and restructuring. “The number of litigation cases we’re involved in has increased by 30% in the past 12 months. That has filled the gap left by the contraction of transactional work,” Hu says. In addition to litigation, local firms expect to see growth prospects for legal services in government-led investment and development projects. “As part of the repercussions of the economic stimulus package, some Shandong SOEs will actively finance local projects, making investment and driving deals forward,” says Cai, whose firm has secured an advisory role in an RMB40bn investment project in Shandong. The soon to be launched Growth Enterprise Board (GEB) on the Shenzhen Stock Exchange also offers new opportunities to local firms. According to official statistics, Shandong is home to over 150 listed companies but has more than 500 enterprises that are qualified and preparing to list. In the past, most of the IPOs and listings involving Shandong companies were advised by Beijing and Shanghai firms. However, local firms believe they are in a better position to advise on Shandong companies’ GEB listings. “We have been working with local companies for many years and understand their business well. Using local firms that are qualified and experienced in securities work will be a cost-effective option for local clients hoping to list on GEB,” Cai says. The Shandong Provincial Development and Reform Commission recently revealed that 169 companies have fulfilled all the requirements for a GEB listing.
Qingdao – a prime location
While firms in Jinan, the capital city of Shandong, are well placed to work closely with large SOEs and Shandongheadquartered companies, firms in Qingdao, the region’s largest city and a major port, enjoy an advantage in ISSUE 6.6
special report | Shandong 09 >>
shipping, international trade, and Japan and Korea practices. Qingdao-based Ya & Tai focuses on commercial matters, and covers corporate, finance, real estate, labour, international trade and foreign investment, and has a renowned shipping and insurance practice, headed by managing partner Li Xuebing. “Qingdao is an important port city and a major commercial hub of northeast Asia,” Li says. “It provides a fertile ground for local firms to build strengths in corporate, shipping and international practices.” The firm has worked with many shipowners, insurers, P&I clubs, charters and traders, most of whom are European. The firm is also known for its Korea and Japan practice, having serviced thousands of Korean and Japanese businesses in Qingdao and established ties with them. “Due to its proximity to Korea and Japan, Qingdao has attracted a substantial chunk of foreign investment from across the Yellow Sea. Companies from these two countries
form an important part of Qingdao firms’ clients,” Li says. Before 2008, most of the Korea and Japan practices in Qingdao focused on handling inbound investment projects and providing general corporate
“The number of litigation cases we’re involved in have increased by 30% in the past 12 months. That has filled the gap left by the contraction of transactional work” Hu Ming, Deheng services to companies established by Korean and Japanese investors. The GFC has caused these practices to shift their focus from inbound work to outbound.
“Many Korean investors have withdrawn from Qingdao and suspended their investment plans due to the GFC. But more of our local clients are taking an interest in investing into Korea and Japan,” Li says. To ensure quality services for its clients in Korea and Japan, the firm has entered into referral relationships with top law firms in Seoul, Pusan and Tokyo. The important ports and shipping centres in Qingdao attracted shipping heavyweight Wang Jing & Co to establish itself in the city in 2005. Four years later, its Qingdao branch plans to set up a Japan practice team to fuel its next phrase of growth. “Shipping and insurance are the core practices of the firm and our Qingdao office now has a steadily expanding clientele,” says Yuan Hui, the partner in charge of Wang Jing’s Qingdao office. “And we’ve recognised the sheer amount of Japanese investment and business in Qingdao. Building a Japan practice will be the next step in the development of the Qingdao office.” ALB
Firm Profile
Kang Qiao
境外投资：山东出台实施细则
为
了进一步促进和规范山东省境外 投资，推动境外投资健康有序发 展，根据《境外投资管理办法》 （简称《办法》），山东省对外 贸易经济合作厅于2009年5月8日颁布了《关 于贯彻落实<境外投资管理办法>有关问题的通 知》（简称《通知》），与《办法》一并贯彻 执行。该《通知》在内容上作了进一步的详细 规定，主要体现在以下几点： 一、细分了省外经贸厅与市外经贸局之间的职 权。 《办法》中只对商务部和省级商务主管部门 授予了对企业境外投资的核准权，而《通知》中 授予省外经贸厅对全省企业境外投资核准权或 转报，授予市外经贸局对本市企业境外投资初 审权和转报，而作为计划单列市的青岛市，则授 予青岛市外经贸局有关核准权或转报文件同时 抄报省外经贸厅。 二、严格要求企业开展境外投资应当事先征 求驻外使（领）馆（经商处）的意见。 《办法》中 省级商务主管部门核准第七条第二款（能源、 矿产类境外投资）时应当征求驻外使（领）馆（
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经商处）意见，其他情形（中方投资额1000万美 元及以上、1亿美元以下的境外投资，需在国内 招商的境外投资）可视情征求驻外使（领）馆（ 经商处）意见。 而在《通知》中，对这几种情形 均要求企业应当事先征求驻外使（领）馆（经商 处）意见。 三、 《通知》针对几种特殊情况做了特殊规 定。1、中央企业在山东省注册的下属企业出具 中央企业总部书面同意意见后，可在省外经贸 厅办理相关境外投资核准手续。2、境外企业增 资后，投资总额达到或超过1000万美元但不及 1亿美元的，适用《办法》第七条规定；境外企 业增资后，投资总额达到或超过1亿美元的，适 用《办法》第六条规定，企业应按第十二条的规 定申报材料。3、企业控股的境外企业境外再投 资，在完成法律手续后一个月内，应当由企业报 省外经贸厅备案。 山东省外经贸厅在贯彻落实商务部《办法》的 同时，针对本省实际情况及时调整和完善了《办 法》中的相关内容，为地方企业境外投资提供了 便利，从而使企业能更加积极稳妥地“走出去”。
金荣奎
贺艳
金荣奎, senior partner Tel: (86)13606404361, (86 531)86128626 E-mail: jinrongkui@kangqiaolaw.com 贺艳, LLM in international trade law (UK) Tel: (86)13506416771, (86531)86128811 E-mail: heyan@kangqiaolaw.com 康桥律师事务所 Kangqiao Law Firm 5 Floor, CITIC Plaza, No.150 Luoyuan Street, Jinan City, China, 250011 Tel: (86 531) 86128621/22 Fax: (86 531) 86128620 Web: www.kangqiaolaw.com
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FEATURE | IP firms >>
China’s LEADING ip firms
Domestic firms
CCPIT Patent & Trademark With more than 400 practitioners, it continues to be one of the best known names in the IP sector. Fangda Partners Winner of the IP Law Firm of the Year at the ALB China Law Awards 2009. Its 30-member IP group has particular strength in major patent litigation. Hylands Its well-established IP practice in Beijing was recently bolstered its capabilities with the appointment of heavyweight IP expert Wang Zhengfa. King & Wood One of the few firms with a dedicated, large IP department and regarded by multinational and large domestic enterprises as a leading full-service IP advisor. Lifang & Partners It has notable strengths in drafting complex and highquality patent applications, and extensive experience handling complex patent litigation cases.
►► Hong Kong ►► India
Amarjit & Associates; Amarchand & Mangaldas; Anand & Anand; Chandrakant M. Joshi Patent and Trademark; DP Ahuja & Co; K&S Partners; Kan & Krishme; Lall & Sethi; Lexorbis; Subramaniam Nataraj & Associates
Domestic: Ella Cheong; Eccles & Lee; Deacons; ONC Lawyers; Rebecca Lo & Co; Sit, Fung, Kwong & Shum; So Keung Yip & Sin; Vivien Chan & Co; Wilkinson & Grist International: Baker & McKenzie; Bird & Bird; Jones Day; Lovells; Simmons & Simmons; Mayer Brown JSM
Liu, Shen & Associates It continues to enjoy a strong reputation among peers and clients for its comprehensive work in IP. Long An Having worked on many groundbreaking and unprecedented IP cases, the firm is highly rated by clients and peers.
►► vietnam
Lovells; InvestConsult; Pham & Associates; Tilleke & Gibbins; Vision & Associates
Peksung The firm’s consistent quality of legal services in all aspects of IP helps secure a steady flow of business coming from both overseas and domestic companies. Watson & Band This boutique IP firm in Shanghai is headed by George Fu, who is well regarded by clients.
►► Malaysia
Henry Goh & Co; Tay & Partners; Wong & Partners; Wong Jin Nee & Teo
Zhongzi Zhongzi’s IP practice is highly rated by clients. This is unsurprising as it handles around 70% of the firm’s work and is serviced by more than 100 lawyers and patent agents.
►► Singapore
Amica Law; ATMD Bird & Bird; Baker & McKenzie. Wong & Leow; Drew & Napier; Lee & Lee; Rodyk & Davidson
International firms Baker & McKenzie Enjoys a growing reputation in the IP sector. Bird & Bird Has renowned IP practice in China, with particular expertise in patents, trademark and tech-related IP. Jones Day The firm’s patent litigation experts were noted for their “depth of specialisation”, with partner Anthony Chen from the Shanghai office particularly noted.
►► Indonesia
►► Thailand
Baker & McKenzie; Chavalit Finch & Partners; Domnern Somgiat & Boonma; Rouse & Co; Satyapon & Partners; Tilleke & Gibbins
Amroos & Partners; Biro Oktroi Roosseno; Hadiputranto, Hadinoto & Partners; Lubis Santosa & Maulana; Soemadipradja & Taher
Lovells Peers took special note of IP head Douglas Clark for his expertise. Rouse & Co At the forefront of IP protection in China.
►► GULF
Abu-Ghazaleh Intellectual Property; Al Tamimi & Company; Clyde & Co; Saba & Co; Nassir Kadasa & Partners
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ISSUE 6.6
FEATURE | IP firms >>
►► Korea
Bae, Kim & Lee; Darae Law & Patent; Kim & Chang; Lee & Ko; YP Lee, Mock & Partners
►► Japan
Domestic: Abe & Matsutome; Abe, Ikubo & Katayama; Anderson Mori & Tomotsune; H. Okada; Momo-o, Matsuo & Namba; Mori Hamada & Matsumoto; Nakamura & Partners; Seiwa Patent & Law; TMI Associates; Yuasa & Hara International: Baker & McKenzie; Finnegan; Lovells; Morrison & Foerster; Ropes & Gray
►► Taiwan
Chen & Lin; Deep & Far Attorneys; Lee and Li; Tsar & Tsai; Winkler Partners
►► Philippines
ACCRA Law Offices; Hechanova Bugay & Vilchez; Quisumbing Torres; Romulo Mabanta Buenaventura Sayoc & De Los Angeles; Sycip Salazar Hernandez & Gatmaitan; Villaraza Cruz Marcelo & Angangco
►► Methodology
Now in its second year, ALB China presents the Leading IP Firms as voted by in-house lawyers across the Asia-Pacific region. In the preparation of this report, ALB conducted telephone interviews with, and invited submissions from, corporates and in-house counsel. The recommendations put forward by firms as part of the ALB China Law Awards were also considered. The information gathered was then collated and tallied to produce ALB China’s Leading IP Firms. Note that the recommendations of in-house counsel and corporates were weighted against the recommendations of firms by a ratio of 2:1. Firms are listed alphabetically under each jurisdiction.
www.asianlegalonline.com
ALB China’s Leading IP Firms In a changing legal frame work, a challenging economic climate and a still dynamic market, the need for a good IP legal advisor has never been greater. ALB China looks at the top IP firms and practitioners across the country
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hina has shown the world it is serious about IP protection with a number of important changes and reforms to its IP legal regime. The importance of IP legal services, therefore, has grown exponentially. In December 2008, the National People’s Congress finally passed its long-awaited Third Amendment to the Patent Law, which will (at least, theoretically) bring the country’s IP laws more in line with US and European standards. Then, in March and April of this year, the Supreme People’s Court (SPC) issued several Judicial Opinions setting out more detailed plans for the implementation of a number of the reforms contained in the State Council’s National IPR Strategy.
IP in PRC: a youthful framework
Since it commenced in 1984, China's Patent Law has been amended three times: in 1992, 2000 and 2008. The latest changes, which commence on 1 October, include such modifications as the adoption of a higher patentability standard (through the onerous “absolute novelty test”), a clarification of “double patenting”, severe penalties for filing patent applications without a licence and tough new disclosure rules for inventions relying on genetic
resources. At this stage, it is difficult to tell how much IP work will result from the changes. “As the third amendment will finally enter into force in October and previous cases still rely on the Second Amendment, the impact is not that obvious yet for our pending cases,” says Gordon Gao, a Beijing-based partner at Fangda Law. “However, for new cases we take the new law into consideration when are advising clients. The new law also helps us to strengthen the understanding of some hot issues and we can combine it with current cases. For example, in respect of the judicial damage awards, the compensation would include the reasonable expenses that the patentee has paid for stopping the infringement. It is very important for right owners and may attract them to hire high-quality professionals to protect their interests.” Long An Law Firm founding partner, Jiali Xu, says the fact that modern concepts of IP law are only recent in PRC make it more difficult to tell just how much impact the current changes will have. “It was only in the early 1980s that China saw the implementation of the modern IP system,” he says. “The biggest impact, however, was when China joined the WTO in 2001, which 39
FEATURE | IP firms >>
meant bringing our [IP] laws in line with the standards set out by the WTO. As you can imagine, a large proportion of our time was spent adjusting the new laws and advising clients.” Xu is not yet certain that a similar surge in work will result from the current changes. “Generally speaking the amendment will have a greater impact on the owners’ rights as opposed to us lawyers. We will see in the near future how trademark, patent and copyright owners will respond to the third amendment and in turn we will then see how our work will be affected.”
IPR protection: onwards and upwards Protection of IP rights in China has improved recently and will improve, as a result of the Third Amendment of Patent Law and Outline of the National Intellectual Property Strategy, particularly when combined with increasingly punitive judicial damage awards. “We can see judicial damage awards for IP right violations in China are increasing,” Gao says. “In the past few years, there have been many cases involving significant damages and complex matters, and high damage awards are occurring more frequently
“We can see judicial damage awards for IP right violations in China are increasing. In the past few years, there have been many cases involving significant damages… and high damage awards are occurring more frequently each year” Gordon Gao, Fangda
each year.” In one of Fangda’s cases, the Beijing Intermediate Court awarded our client damages of RMB1.15m despite the fact the firm only provided circumstantial evidence to prove damages. This award was affirmed by the Beijing High People’s Court. “It is a significant improvement as in the past the Chinese courts tended to require concrete evidence for making damages awards beyond the statutory Jiali Xu, Long An amount,” Gao says. The new IP legal framework will also improve the quality of patents in China and prevent the creation of ‘junk patents’. “Junk patents cause many unnecessary issues in practice… The revised Patent Law accordingly raises the criteria on the grant of patent rights, and it especially revises the criteria on novelty of granting patent rights. Such provisions will improve the quality of patents and
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ISSUE 6.6
FEATURE | IP firms >>
►► Rising IP litigation in China Trials in 2008 Case type: Cases handled by all Chinese courts Number of cases: 10.7 million Compared to 2007: up 11% Case type: Intellectual property right infringement cases Number of cases: 27,876 Compared to 2007: up 33%
prevent serious unfairness,” Gao says. The Schneider v Chint case – in which a France-based manufacturer of low voltage electronics and its main Chinese competitor disputed patent ownership – for example, would not have happened had the law prevented junk patents effectively.
Defying the GFC
One thing that does not seem to have had too much impact on IP practices is the global financial crisis, in fact it has created a few opportunities for IP lawyers. “It is safe to say that our IP group is the busiest within our firm and constantly growing, in
particular our IP Litigation team,” Xu says. “The economic downturn has certainly made companies more eager to assert their IP rights. They want to make sure that although the current situation is good, their IP is protected for when things pick up again.” Xu believes that, generally, IP work should not be too closely linked to the financial crisis. The IP industry always provides opportunities and furthermore the industry is constantly rising, regardless of the crisis.” It an opinion supported by Gao, who says the GFC has only affected some aspects of his firm’s Gordon Gao, Fangda business and even then only to a small degree. Gao also notes that Fangda’s IP litigation practice was the fastest growth area of the firm over 2008, telling ALB “owners tended to use litigation to protect patents and trademarks more eagerly, and we have
seen the volume of cases go up across a broad range of industries”. Meanwhile, He Jing, senior associate of Baker & McKenzie’s Hong Kongbased IP practice group, says IP practices tend to be “much more stable” than other areas of practice rather than riding the boom and bust cycle. “If you look at the big picture, the Chinese Government has a big incentive to keep the economy going strong – especially since the current global crisis has impacted so significantly on exports,” He says. “Some of the local authorities have a tendency to take a step back in enforcement. This actually requires multinational to put more effort into lobbying harder with local governments to accomplish the same kinds of results. The message is that it requires more work.” So while the ups and downs of many practice areas might not often apply to IP lawyers it is safe to assume that, as a result of the Third Amendment and recent Judicial Opinions, an “up” may not be too far away. ALB
Firm Profile
Longan Law Firm
驰名商标的法律意义 — 对最近最高法院关于 驰名商标司法解释的评议
驰
名商标具有巨大的商业价值，对 法律适用有着重大影响。最高法 院关于驰名商标的司法解释对司 法实践具有重大的指导意义。现 就驰名商标的法律意义谈一下三个方面： 第一，诉讼管辖。将涉及驰名商标的案件 集中在省会市、计划单列市和经最高法院批 准的中级法院及中级以上法院管辖，对克服 当前发生的驰名商标异化问题非常有意义。 但是，这种安排应该是临时的。在适当的时 候，应当调整管辖权。 第二，未注册驰名商标的保护。我国实行商 标注册制度，未注册商标受到反不正当竞争法 的保护。对未注册驰名商标的保护程度止于相 关公众对争讼的商标“容易导致混淆”。混淆不 限于商品来源误认，还包括足以使相关公众认 为商品经营者之间具有许可使用、关联企业关 系等特定联系的情形。对未注册驰名商标的保 护强于普通商标，但弱于注册驰名商标。这种 保护程度有待提高。驰名商标的保护强度不应
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因为商标是否注册而有所不同。 第三，注册驰名商标的跨类保护。司法解释 首次正式引入了商标淡化理论和联想理论。在 存在驰名商标弱化、丑化从而损害了其显著性 时，驰名商标所有人有权得到救济，这是对淡 化理论的认可。攀附驰名商标商誉的行为也被 禁止，凡不正当利用驰名商标商誉的行为，权 利人有权获得救济，这体现了对联想理论的部 分承认。但何谓不正当利用驰名商标商誉仍需 要进一步明确。就此而言，对驰名商标的保护 侧重于反不正当竞争。 Jiali Xu Managing Partner Email: jialixu@longanlaw.com Longan Law Firm | www.longanlaw.com Room188, Beijing International Club, 21Jianguomenwai Street, Beijing 100020 Tel:8610 65325588 Fax:8610 65323768 Mob:86 13601011122
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Event | ALB In-house Legal Summit: Shanghai >>
ALB In-house Legal Summit: Shanghai 2009 On 14 May, close to 200 of China’s highest profile in-house lawyers and ‘C-suite’ executives descended on the Hilton Hotel Shanghai to discuss the major issues they face as China’s dragon economy and legal sectors move into top gear despite the global financial crisis
A
s many corporate counsel will tell you, it is an odd time to be an in-house lawyer. On the one hand there are the issues of shrinking teams and slashed legal budgets to contend with and on the other ever-increasing workloads, closer attention to detail and more and more companies looking to their in-house lawyers to play lead counsel on multimillion-dollar corporate transactions. A classic dichotomy discussed at length in both the workshop presentations and the in-house panel discussion at the ALB In-house Legal Summit: Shanghai 2009. Effectively managing relations with external legal counsel, cost and quality control, unsurprisingly, were the main themes of the in-house panel discussion, which was chaired by Sharon Chen, VP and regional counsel for AIG General Insurance China, and comprised of David Du, a senior legal counsel for Bosch (China) Investments; Janet Lin, the China head of legal for DBS Bank (China); and Arrow Electronic’s Asia-Pacific legal director
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Margaret Ng. All panelists noted that while the task ahead for in-house legal teams remains a tough one, it is nonetheless achievable provided companies in China professionalise the way they select external counsel and monitor their performance. The delegates provided examples of how their companies were putting systems in place to help achieve this and also shared some of their own experiences. The importance of operational efficiency was also a theme that figured heavily in the keynote address which was delivered by Le Yinglei, director of legal at China Telecom’s Shanghai branch. In an insightful address, Le offered her perspective on the stresses and strains on in-house teams in Chinese SOEs, pointing out that while they may be subject to a differing set of demands and expectations, they too face the very real prospect of shrinking teams and having to handle more work internally. There was also an information-packed series of workshops, which contained information on trends, the market,
and legal practice and procedure, as well as topical case studies such as Chinalco’s investment in Rio Tinto – the latter of which was the subject of an entertaining and informative presentation by Clifford Chance partner Rupert Li. Delegates were treated to in-depth workshops on topics as diverse as how to make sure your company and its investments are FCPA compliant, the ins and outs of commercial arbitration, the opportunities and challenges in M&A in Europe and the UK as well as ensuring that the complex tax issues that arise in cross-border transactions and private equity investments are all above board. ►►ALB In-house Summit: Beijing
Be sure to join us at the ALB In-house Summit: Beijing on 19 November 2009. For more information contact: Dara Yam, Tel: +852 2815 5988, Email: dara@kmimail.com Sponsorship and partnership enquiries: Joel Ulbricht, Tel: +852 2815 5988, Email: joel@kmimail.com ISSUE 6.6
Event | ALB In-house Legal Summit: Shanghai >>
ALB In-house LEGAL summit: shanghai 2009 workshops Implementing an effective FCPA compliance program for FIEs in China In view of the rising number of prosecutions and actions against US companies for violation of FCPA, foreign subsidiaries of US companies should be more proactive in their FCPA compliance. This presentation included an overview of FCPA, its implication on the FIEs in China, PRC anti-bribery laws and regulations relevant to FCPA compliance, recent case studies, especially recent China-related cases, its implication on M&A activities and joint venture projects, as well as formulation and implementation of an effective FCPA compliance
program for FIEs in China, for example, arrangement of training programs, formulation of standard business conduct and internal reporting procedures. Speakers: Philips Zhenyu Ding, partner; Charles Fei Liang, executive partner; Kathy Lijun Yang, partner Philips Zhenyu Ding
Charles Fei Liang
Philip Jeyaretnam SC
Lek Siang Pheng
Guy Facey
Adam Duthie
Audry Li
Zhou Yun
Rupert Li
Kelly Gregory
Kathy Lijun Yang
Managing and rescue of troubled investments – the use and abuse of arbitration This workshop was broken up into three sections. Section one dealt with providing for trouble in your agreement: making the right choice in drafting. The second segment dealt with Navigating amid the perils and pitfalls of a typical investment dispute. Finally, delegates looked closely at a number of pertinent case studies which was followed by a discussion of the themes and issues discussed during the workshop.
Speakers: Philip Jeyaretnam, partner; Lek Siang Pheng, partner
Product liability litigation and China’s new anti-monopoly laws This workshop looked in detail at the investment opportunities for Chinese companies throughout the US & UK. Topics talked about included making the most of low asset values and the depreciated sterling, overseas acquisitions by private Chinese companies and issues for the buyer a brief overview on buying from administrators/receivers in a bankruptcy situation. Delegates were stepped through a case study involving
luxury brand acquisition by Chinese companies that touched on these issues and more. Speakers: Guy Facey, partner; Adam Duthie, partner
How to avoid litigation: Tips on reviewing commercial contracts This workshop was split into three separate sections. Part one dealt with the key practical issues to consider when doing acquisitions in China, part two with maximising tax benefit in M&A and part three with the issues surrounding the structuring of PE deals in China: the latest trends and developments. In part one, delegates were given an overview of all phases of acquisitions and how to identify key issues, this presentation discussed practical issues to be considered to ensure successful acquisitions in China by foreign companies based on the speaker’s recent years’ handful of experiences in advising multinational clients. In part two, tax was established as a critical part of the M&A process, which if managed properly will help to ensure a successful deal. This presentation provided valuable insights
on tax strategy throughout the entire M&A spectrum under China’s legal regime to maximize tax benefit in M&A. Finally, in part three, PE deals are becoming more and more complex in China. This presentation visited some of the latest trends and developments in the sector and provided a thorough comparison on various deal structures and their pros and cons. Speakers: Audry Li, partner; Zhou Yun, partner; Jeremy Dai, partner
Jeremy Dai
Product liability litigation and China’s new anti-monopoly laws Ensuring a successful cross-border investment requires a deeper understanding of the economic and geopolitical forces at work than ever before. Drawing on their experience in complex China outbound transactions such as Chinalco’s investment in Rio Tinto, and on successful inbound acquisitions and joint ventures such as Airbus’ Tianjin aircraft assembly plant, these presenters explained the considerations and preparations required in order to ensure approvals,
www.legalbusinessonline.com
financing and the successful completion of sizeable deals of these types. Speakers: Rupert Li, partner; Kelly Gregory, counsel; Jiajia Gao, lawyer
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Sign off >> Japanese mid-market M&A industry volume by target sector 5%
3.4% 19.9%
6.9%
8.8%
19.1%
9.6%
12.2%
13%
Energy and Power
Consumer Staples
Healthcare
Industrials
Telecommunications
Materials
Media and Entertainment
Financials
Retail
High Technology
Consumer Products andrvSe ices ts and Services Source: Thomson Reuters
Real Estat Real Estat
Taylor Wessing gets creative T
aylor Wessing recently unveiled a handful of cost-cutting initiatives, in an effort to brave the financial crisis – and found a few new measures with a difference. In addition to making up to 20 redundancies, and offering sabbaticals and voluntary redundancy to all staff, the firm has also offered all employees an extra two weeks of holiday in return for a 3.85% reduction in salary. The sabbaticals suggested are on 10% pay, with client secondments and the transfer of lawyers between practice groups also an option for practitioners to consider. The firm has also followed the lead of other UK firms and will be freezing staff salaries at current levels until the end of the 2010 financial year, culminating in a reduction in salary bands across the firm. ALB 44
Eversheds chief shows off firm’s green credentials E
versheds senior partner Cornelius Medvei recently showcased the firm’s London headquarters on Wood Street in a CoreNet Global New York presentation at Manhattan’s Time-Life Building. The presentation, entitled ‘Workplace Innovation: Changing the Rules in the Legal and Banking Industries’, heralded the firm for being successful in fostering a flexible workplace culture through what could prove to be potentially revolutionary architecture, design and technology. In addition to encouraging workplace flexibility, Evershed’s London headquarters reportedly minimises
environmental impact and promotes sustainability through the use of green roofing; chilled beam air conditioning; sustainable and recyclable building materials – which include recyclable carpet; certified timber veneer; intelligent lighting; recyclable furniture; and locally sourced products and finishes. The building also has a BREEAM (Building Research Establishment Environmental Assessment Method) “excellent” rating and won the 2009 British Council for Offices regional award for Best Corporate Workplace in April. ALB
Sensitive information is rubbish C
lients of US law firm Frenkel Lambert Weiss Weisman & Gordon were shocked to find that personal information, such as addresses, medical records and Social Security numbers, had been dumped in bins outside the firm. The client files had been disposed of as part of a firm clean-up in preparation for an office move in June. Under New York law, businesses must dispose of private information in a safe manner. ALB ISSUE 6.6
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BRISBANE
布里斯本
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PERTH
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柏斯
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威灵顿
We measure the market.
In-house
Private Practice
General Counsel (10-15 yrs pqe) Shanghai Serve as in-house General
Patent Attorney Beijing/Shanghai/Hong Kong Highly regarded global law firm currently requires an experienced IP/patent lawyer, ideally, with an electrical engineering background. The preferred candidate will have stellar academics with solid international firm experience. Fluent Chinese and English language skills are essential. Ref: 8187/CB
Counsel for this integrated financial powerhouse. Covering all aspects of corporate and retail financial services, the role manages greater China and requires a China qualified lawyer with extensive PRC experience. Previous experience dealing with CBRC and PBOC is highly preferred. Financial services, banking, regulatory and/or a structured/corporate finance background is ideal. Must have proven ability to work in a bi-cultural environment, and candidates with a US law degree and international exposure will be favored. Required: demonstrated leadership skills and an outgoing personality. Ref: 8176/CB
Legal Counsel (8-10 yrs pqe) Shanghai Sole counsel position for a technically strong lawyer with good communication skills with the management team. This international manufacturing company needs a PRC qualified lawyer with experience in M&A, JV, employment and general corporate/commercial matters. The ideal candidate has a US LLM and a combination of international law firm experience and comes from an in-house position in a similar industry. Native Mandarin and fluent English are required. Ref: 8188/CB Senior Compliance Manager (7+ yrs exp) Beijing Join this famous global
IP Litigation Lawyer (5 yrs pqe) Beijing/Shanghai/Hong Kong Our client, a leading US law firm with a strong presence in Asia, seeks a China qualified IP lawyer who is familiar with litigation. The firm is building up its IP practice, and the incumbent could be located in either Beijing, Shanghai or Hong Kong. Chinese proficiency is a must. Ref: 8186/CB
Patent Attorney (4+ yrs pqe) Beijing/Shanghai Magic Circle firm is adding
a sharp Patent Attorney to its China team. You should have relevant experience gained in a reputable PRC firm with strong academics. Chinese patent law or IP background is desired to work on a variety of matters. Ref: 8185/CB
Corporate Associate (4-6 yrs pqe) Hong Kong Recruiting lawyers to join an
international firm. Hong Kong and/or China qualifications will be given priority, but all jurisdictions will be considered. Must have IPO/MA/PE experience along with general corporate knowledge. English fluency is needed along with native Mandarin or Cantonese. Ref: 8173/CB
conglomerate to ensure the integrity of its compliance department in Beijing. The incumbent will be a lawyer or have a master’s degree with extensive knowledge and experience in compliance areas. Those coming from another MNC will have priority. Needed: strong project management and prioritization skills along with the ability to work in a complex environment with multiple clients and short timelines. Ref: 8168/CB
Corporate Associate (3-6 yrs pqe) Hong Kong Focus on real estate matters
Derivatives Lawyer (5-8 yrs pqe) Hong Kong This preeminent financial advisor is seeking an experienced and enthusiastic lawyer to work with the structuring desk in the Hong Kong office. The role will cover a mixture of equity and OTC derivatives matters. Our client desires a strong background in any of the following types of derivatives: equity, foreign exchange or interest rates. Chinese is not a requirement, but Mandarin skills will be a benefit. Ref: 8165/CB
Corporate Lawyer (3-5 yrs pqe) Hong Kong Looking for superb lawyers to
Equities Documentation Negotiator (3-5 yrs exp) Hong Kong Interesting position on the trading floor within this famous global financial institution. The role will prepare and negotiate master agreements with clients and have responsibility for documentation aspects of OTC derivative transactions. A law degree is preferred and experience with equity derivatives, ISDA documentation and/or with securities lending is a plus. Proficiency in Mandarin or Korean would be highly regarded. Ref: 8200/CB
Junior Restructuring Lawyer (1 yrs pqe) Hong Kong This prestigious international law firm has a strong reputation in banking/finance and now seeks a junior lawyer to work on restructuring and insolvency matters. To be considered, candidates need to have experience in drafting restructuring and appointment documentation, general banking and insolvency, having acted for a range of stakeholders, debtors and creditors. Ref: 8162/CB
for this international law firm with expertise in developing markets. Applicants need Hong Kong or China qualification and an overseas LLM is preferred. The role will also involve M&A deals, so those with M&A/PE experience will also be considered. Must have fluent English along with native level Mandarin or Cantonese. Ref: 8181/CB
join the corporate team of a leading international law firm. This thriving practice needs someone with general corporate exposure; those with IPO and/or M&A experience are favored. Chinese language skills are necessary. Ref: 8166/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
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