ISSUE 7.2
In-house lawyers come of age The new SASAC measures explained
国资委新规解析：企业法律顾问队伍建设成焦点
Building global success
Construction firms focus on international contracting
海外工程：建筑法律服务新亮点
ALB Special Report: Yangtze River Delta 2010
长江三角洲法律服务市场2010年专题报告
CHINA
Hottest practice areas for the Year of the Tiger 2010虎年法律服务市场 走势十大预测
n DEALS ROUNDUPn UK, US REPORTS n LATERAL MOVES n APPOINTMENTS n LATEST CAPITAL MARKETS DATA
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16 April 2010, The Westin Bund Centre Shanghai
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News | editorial >>
Defending lawyers’ rights
O
f all the cases in which lawyers were tried and sentenced, very few can compare to the ‘Li Zhuang case’ in terms of the widespread public concern and fierce debate within the profession it caused. Li Zhuang, the former partner of Kangda law firm who defended alleged Chongqing gang leader Gong Gangmo, was charged with falsifying evidence and has been sentenced to one and a half years in gaol. The after-effects of his sentencing, as much as the aftermath of his arrest in December 2009, have caused a nationwide debate over issues such as the rule of law, the rights of lawyers, and the rights of the accused. Public opinion on Li’s case and its implications for the rule of law in China is equally divided into two main categories: ‘progress of the rule of law’ and ‘failure of the judicial system’. Among the country’s 160,000 lawyers, the integrity of criminal defence lawyers and the major difficulties they face carrying out their professional duties are at the centre of the arguments. A Beijing lawyer said that it’s a paradox – lawyers’ duties are to defend clients and protect clients’ rights and interests, but their own rights are vaguely defined and not properly protected. And many lawyers and legal scholars cite this case as one of the many examples of the lack of protection afforded to legal representation in recent years. Some have gone even further and pointed out that the government’s efforts fighting against crime and corruption deserve praise and full support. But no matter how many criminals are put behind bars, the problems will persist. Justice won’t be fully served until the development of an independent judicial system occurs – where legal privilege is protected. Li’s arrest and sentencing, which has been widely labelled as one of the landmark events in the history of the country’s judicial system, may highlight many worrying issues regarding legal procedure and the protection of lawyers’ rights. However, the vehemence of Chinese society’s response to the case, from both the supporters and detractors of Li, has been – surprisingly – revolutionary. The degree of public debate on the rule of law and lawyers’ rights, as well as the increasing emphasis placed on the importance of judicial independence of the courts, has been especially promising. All these things suggest an increasing public interest in defining what a society ruled by laws and legal procedure should be like.
The vehemence of Chinese society’s response to the case ... suggests an increasing public interest in defining what a society ruled by laws and legal procedure should be like www.legalbusinessonline.com
IN THE FIRST PERSON “The four-level professional qualification framework creates a brand new channel for in-house counsel to progress in their career and offers new incentives to advance their professional development” Wei Zhengxing, China Southern Airlines (p8)
“Debt markets have done very well over the past year as domestic companies venture overseas, while their international competitors have been beaten down by the GFC” Henry Tang, Jiangsu Co-far Law Firm (p41)
“As China construction companies have gained more knowledge and experience in international markets they will demand a higher level of skills and knowledge from their legal advisors” Qin Yu, partner, Jun He (p44)
CHINA
1
CONTENTS >>
contents 10 28 COVER STORY Sectors to watch in 2010: leading industry observers predict what the Tiger Year holds in store for ten key sectors
ANALYSIS 8
SASAC new measures: in-house lawyers under spotlight SASAC has moved up another gear in its continuing efforts to improve legal risk management within state-owned enterprises – it has issued new measures to ensure heightened competency and professionalism among in-house legal departments
10 The ‘counsel’ position: good for lawyer, firm or client? Are international firms increasingly using the title ‘counsel’ to provide an extra career path for their lawyers or an extra weapon in their business development agendas?
12 New rules: law firms forced to change names In line with the growing profile and depth of the legal services industry, the Ministry of Justice has promulgated new measures for the administration of domestic law firm names. The broad impact for many firms will be significant
FEATURES 34 ALB Special Report: Yangtze River Delta 2010 The legal market in this region has undergone significant changes in the past year, and is beginning to offer new riches to lawyers
The Updates section of ALB China is sponsored by the following firms:
42 Construction: building global success Chinese construction companies are making remarkable inroads into the international construction market and law firms have seen their construction practices growing and billable hours soaring
REGULARS 4 15 • • • • •
DEALS NEWS Zhonglun W&D taps into new domestic markets Domestic firms hungry for international talent Four PRC firms in M&A top ten Beijing plays host to first Iberian law firm Zhongyin opens second branch in Fujian for Taiwanese clients
The Updates section of ALB China is sponsored by the following firms: Arbitration editor
Beijing editor
SIAC is an independent, not-for-profit organisation, providing the international business community with a neutral, efficient and reliable dispute resolution institution in Asia. Most of the parties involved are non-Singapore parties; panel arbitrators are from all over the world; various contracts opt for non-Singapore law as the substantive laws; secretariats are multinational and multi-bilingual; and the arbitral awards are enforceable in over 140 signatory countries to the New York Convention.
Guantao is a leading PRC firm with core businesses in capital markets, M&A, real estate, restructuring & insolvency, and energy & resources. With a team of nearly 150 lawyers nationwide, Guantao provides advice of high quality to clients home and abroad. Headquartered in Beijing, it has offices in Shanghai, Shenzhen, Xi’an, Dalian, Chengdu, Ji’nan, Xiamen, Tianjin and Hong Kong. International tax editor
Singapore editor
Loo & Partners was founded in 1985 as a niche practice, handling mainly banking, corporate, securities and commercial work. With the support of a comprehensive network of correspondent law firms, the firm serves its clients in their regional needs. The firm has been regularly noted for its IPO, M&A and general corporate work.
2
AzureTax Ltd provides transparent strategic and ethical tax advice. Through our professional corporate and International, tax advisory and trustee services your tax plan is comprehensively implemented. Our tax advice provides independent innovative and rigorous solutions which deliver results and long-term accountability. Qualified UK, US, Hong Kong and PRC tax advisors. Tax filings for UK, US and Hong Kong Tax Returns.
ISSUE 7.2
ALB China issue 7.2
www.legalbusinessonline.com Copyright Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as ALB China can accept no responsibility for loss.
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NEWS | deals >>
| M&A |
deals in brief
►► CapitaLand Limited – Orient Overseas Developments acquisition 嘉德置地斥资31亿元收购港 东方海外国际 Value: US$2bn
Firm: O’Melveny & Myers Client: Orient Overseas Firm: Slaughter and May Lead lawyer: Neil Hyman Client: Orient Overseas
| CAPITAL MARKETS | ►► RUSAL IPO 首家俄罗斯企业在港上市 Value: US$2bn
Firm: Jun He Law Offices Client: Rusal Firm: Sidley Austin Lead lawyers: Constance Choy, Alan Linning Client: Rusal
HEADLINE DEAL
Firm: Egorov, Puginsky, Afanasiev & Partners Client: Rusal Firm: Ashurst Client: Rusal Firm: Bredin Prat Client: Rusal
Constance Choy Sidley Austin
Firm: Linklaters Lead lawyers: Teresa Ma, Jon Gray Client: Underwriters Firm: Dewey & LeBoeuf Lead lawyers: Paul Chen, Stephen Wozencroft, Heng Loong Cheong Client: SUAL Partners
Firm: Cabinet D’ Avocats Client: Rusal Firm: Asters Law Firm Client: Rusal • First listing on the HKSE by a Russian company and the second by a European company • First transactional advice given as a partner for Dewey & LeBoeuf’s Heng Loong Cheong after being promoted in 2010
“Listing on the HKSE opens a new chapter in investment cooperation between Russia and China. From the legal point of view, Hong Kong is a leading exchange that imposes strict requirements as to information disclosure and holds companies operating in developing markets in especially high esteem” Dimitry Afanasiev, Egorov, Puginsky, Afanasiev & Partners 4
Neil Hyman Slaughter and May
• Transaction constitutes a major transaction under the Listing Rules and as such is subject to the approval of shareholders of Orient Overseas • Slaughter and May recently advised a group of underwriters on one of the largest Hong Kong IPOs in 2009 – the firm has previously worked with the underwriters and was approached again
Firm: Ogier Client: Rusal
Firm: Cleary Gottlieb Steen & Hamilton Client: Rusal
Firm: Baker & McKenzie Client: CapitaLand
| PROJECT FINANCE | ►► Salalah Independent Water and Power Project Salalah中国水电项目 Value: US$1bn
Firm: Shearman & Sterling Lead lawyers: Andrew Ruff, Nick Wang Clients: China Development Bank, Bank of China Firm: Century-link Law Office Client: China Development Bank Firm: Denton Wilde Sapte Lead lawyer: Christopher McGeeOsborne Client: Government of Oman Firm: Said Al Shahry Law Office Lead lawyers: Alastair Neale, Taimur Malik Client: China Development Bank • DWS has longstanding association with Oman government – advised
on its privatisation policies of electricity/water sectors (which affected this deal) in 1999 • SASLO also advising project’s founder shareholders on other project matters
“Chinese financial institutions have [a growing interest] in the Middle East and this continues a trend of strong interest by Chinese financial institutions in funding offshore projects" Andrew Ruff, Shearman & Sterling
| DEBT MARKET | ►► China Railway Group – senior notes issuance 中国中铁发行债卷 Value: US$879m
Firm: Zhong Lun Lead lawyers: Ye Beicheng, Li Hairong Client: Joint sponsors • Zhong Lun also advised underwriters on Shengli Oil & Gas Pipe’s IPO in 2009
Ye Beicheng Zhong Lun
• Approved by the China Securities Regulatory Commission, bond sale is Li Hairong the first of two Zhong Lun instalments involving as much as RMB12bn of bonds
| PRIVATE EQUITY | ►► Consortium – Guangxi Beisheng Pharmaceutical investment 私人投资者投资于广西北生药业 Value: US$574m
ISSUE 7.2
NEWS | deals >>
Firm: Llinks Law Offices Client: Guangxi Beisheng Firm: Zhejiang L&H Law Firm Lead lawyer: Zheng Jindu Client: Consortium • Consortium of private investors Zheng Jindu include Zhejiang L&H Hangzhou Law Firm Tianxi, Hangzhou Tangqi, Xu Guangyue, Chen Jinxia, Wu Tong, Zhou Chuqing, Liu Xianzhen and Shao Nanyan • Zhejiang L&H is based in Hangzhou and serves mainly medium to large size companies
| DEBT MARKET | ►► New World Development Hong Kong bonds issuance 新世界香港发行债卷 Value: US$500m
Firm: Clifford Chance Lead lawyer: Alex Lloyd Client: Issuer • New World Development is Alex Lloyd Clifford Chance seeking to raise US$300mn from a 10-year US dollar bond • HSBC Holdings PLC, Morgan Stanley and JP Morgan & Chase Co. are handling the bond sale
| DEBT MARKET | ►► China REIT Management sale of Beijing Gateway Plaza 睿富房地产基金出售北京凯 威大厦
►► YOUR MONTH AT A GLANCE Firm
• When completed, the transaction may lead to the first determination of a real estate investment trust (REIT) listed on HKSE www.legalbusinessonline.com
Deal name
Value (US$m) 354
Deal type
AllBright
China
Shanghai Industrial – Neo-China Land acquisition
Ashurst
China/ Middle East
Rusal IPO
2,000
Equity market
Asters
China/ Middle East
Rusal IPO
2,000
Equity market
Baker & McKenzie
China/ Hong Kong
CapitaLand Limited–Orient Overseas Developments acquisition
2,000
M&A
China/ Hong Kong
International Mining Machinery IPO
326
Equity market
Bredin Prat
China/ Middle East
Rusal IPO
2,000
Equity market
Cabinet D’ Avocats
China/ Middle East
Rusal IPO
2,000
Equity market
Century – Link Law Office
China/ Middle East
Salalah Independent Water and Power Project
1,000
Project finance
Cleary Gottlieb
China/ Middle East
Rusal IPO
2,000
Clifford Chance
China/ Hong Kong
Hai Tong Financial–Taifook Securities acquisition
231
M&A
M&A
M&A
Equity market
China/ Hong Kong
China REIT Management sale of Beijing Gateway Plaza
442
Hong Kong
New World Development bonds issuance
500
Debt market
China/ Hong Kong
International Mining Machinery IPO
326
Equity market
Conyers Dill & Pearman
China/ Hong Kong
Shimao Property Holdings consent solicitation
undisc
Debt market
Davis Polk & Wardwell
China/ Hong Kong
Shimao Property Holdings consent solicitation
undisc
Debt market
194
Debt market
Commerce & Finance
Hong Kong/ US
Sino-Forest–Mandra Forestry Finance senior note exchange
Denton Wilde Sapte
China/ Middle East
Salalah Independent Water and Power Project
1,000
Project finance
Dewey & LeBoeuf
China/ Middle East
Rusal IPO
2,000
Equity market
DLA Piper
China/ Hong Kong
Hai Tong Financial–Taifook Securities acquisition
Egorov, Puginsky, Afanasiev & Partners
China/ Middle East
Rusal IPO
231
M&A
2,000
Equity market
Freshfields
China/US
Tangshan Caofeidian EMCORE investment
55
Equity market
Greenberg Trauig
China/ US
Kandi Technologies notes issuance and PIPE transaction
10
Debt market
Herbert Smith
Hong Kong
ZTE H-shares placement
China / Hong Kong
Xiwang Sugar Holdings top-up placement
China/ Middle East
Rusal IPO
China/ Hong Kong
China SCE Property Holdings IPO
200
Equity market
JSM Mayer Brown
China
Shanghai Industrial–Neo-China Land acquisition
354
M&A
Khattar Wong
China/ Singapore
China Sports International Limited share placement
King & Wood
China/ Hong Kong
International Mining Machinery IPO
K & L Gates
China/ US
Kandi Technologies notes issuance and PIPE transaction
Linklaters
China/ Middle East
Rusal IPO
China/ Hong Kong
Jun He
337
Equity
43
Equity
2,000
15
Equity market
Equity
326
Equity market
10
Debt market
2,000
Equity market
China SCE Property Holdings IPO
200
Equity market
Hong Kong/ US
Sino-Forest–Mandra Forestry Finance senior note exchange
194
Debt market
Llinks
China
Consortium–Guangxi Beisheng Pharmaceutical investment
574
Equity
Lovells
China
Shanghai Industrial–Neo-China Land acquisition
354
M&A
Mallesons
China
Shanghai Industrial–Neo-China Land acquisition
354
M&A
Ogier
China/ Middle East
Rusal IPO
2,000
Equity market
O’Melveny & Myers
China/ Hong Kong
CapitaLand–Orient Overseas Developments acquisition
2,000
M&A
O’Neil
China/US
Tangshan Caofeidian EMCORE investment
Paul Hastings
China/ Hong Kong
China SCE Property Holdings IPO
55
Equity
200
Equity market
354
M&A
Richards Butler
China
Shanghai Industrial–Neo-China Land acquisition
Said Al Shahry Law Office
China/ Middle East
Salalah Independent Water and Power Project
1,000
Shearman & Sterling
China/ Middle East
Salalah Independent Water and Power Project
1,000
Project finance
Slaughter and May
China/ Hong Kong
CapitaLand–Orient Overseas Developments acquisition
2,000
M&A
China/ Hong Kong
TPV Technology–Koninklijke Philips Electronics NV acquisition
128
M&A
Sidley Austin
China/ Middle East
Rusal IPO
2,000
Equity market
China/ Hong Kong
Shimao Property Holdings consent solicitation
undisc
Debt market
Value: US$442m
Firm: Clifford Chance Lead lawyer: Simon Cooke Client: RREEF China REIT Management
Jurisdiction
Walkers
China/ Hong Kong
International Mining Machinery IPO
White & Case
China/US
Tangshan Caofeidian EMCORE investment
326 55
Project finance
Equity market Equity
Woo Kwan Lee & Lo
China/ Hong Kong
Hai Tong Financial–Taifook Securities acquisition
231
M&A
Zhejiang L&H Law Firm
China
Consortium–Guangxi Beisheng Pharmaceutical investment
574
Equity
Zhong Lun
China/ Hong Kong
China Railway Group senior notes issuance
879
Debt market
Does your firm’s deal information appear in this table? Please contact
alb@keymedia.com.au
61 2 8437 4700
5
NEWS | deals >>
• Clifford Chance team advised RREEF as the manager of the REIT on the sale of Gateway Plaza in Beijing, including a repayment of outstanding debt
| M&A | ►► Shanghai Industrial – NeoChina Land acquisition 上海实业控股收购中新地产 Value: US$354m
Firm: AllBright Law Offices Lead lawyer: Zhu Ying Client: Shanghai Industrial Firm: JSM Mayer Brown Lead lawyers: Patrick Wong, Allan Yu Client: Shanghai Industrial Firm: Richards Butler Client: Neo-China Land
Zhu Ying Allbright
Allan Yu JSM Mayer Brown
Firm: Mallesons Client: Invest Gain Firm: Lovells Client: Joint financial advisors • Richards Butler recently advised CIC in its US$709m equity purchase from Jiangsu Zhongneng
| EQUITY | ►► ZTE H-shares placement ZTE集团配股 Value: US$337m
Firm: Herbert Smith Lead lawyers: John Moore, Matt Emsley Client: Joint bookrunners
►► International Mining Machinery IPO IMM首次上市 Value: US$326m
Firm: King & Wood Client: Issuer Firm: Baker & McKenzie Client: Issuer Firm: Walkers Lead lawyer: Denise Wong Client: Sole sponsor Firm: Commerce & Finance Client: Sole sponsor
John Moore Herbert Smith
• Herbert Smith advised Goldman Sachs as the sole global coordinator, senior joint bookrunner and joint placing agent and Deutsche Bank as joint bookrunner and joint placing agent
6
| CAPITAL MARKETS |
• IMM, backed by The Jordan Company, was formed in 2006 to acquire Jixi Coal Mining Machinery and Jiamusi Coal Mining Machinery • King & Wood and Commerce & Finance recently advised on one of
2009’s largest (US$3.9bn) Hong Kong IPOs, that of China Pacific Insurance
• This transaction marks the first takeover of a Hong Kong-listed company by a mainland brokerage
| M&A |
• Clifford Chance also advised China Minsheng Bank in its US$3.9bn IPO in December
►► Hai Tong Financial – Taifook Securities acquisition 海通收购大福证券 Value: US$231m
Firm: DLA Piper Lead lawyers: Esther Leung, Jeffrey Mak Client: Hai Tong Firm: Clifford Chance Lead lawyer: Cherry Chan Client: NWS
| CAPITAL MARKETS | ►► China SCE Property Holdings IPO 中骏置业控股香港2亿美元 IPO Value: US$200m
Jeffrey Mak DLA Piper
Firm: Woo Kwan Lee & Lo Client: NWS
Firm: Paul Hastings Lead lawyers: Raymond Li, Sammy Li, Neil Torpey Client: Issuer Firm: Jun He Client: Underwriters
Raymond Li Paul Hastings
ISSUE 7.2
NEWS | deals >>
Firm: Davis Polk Lead lawyer: Willam Barron Client: Financial Advisor • This transaction is a two step private exchange, pursuant to private placements, by SinoForest Corporation, of US$187m of 10.25% guaranteed senior notes due 2014, issued under an existing indenture, for US$194m of 12% guaranteed senior notes due 2013 and 189,565 warrants issued by Mandra Forestry
| M&A | ►► TPV Technology Koninklijke Philips Electronics NV acquisition 冠捷科技有限公司收購 KONINKLIJKE PHILIPS ELECTRONICS Value: US$128m
Firm: Slaughter and May Lead lawyer: Neil Hyman Client: Koninklijke Philips Electronics • Slaughter and May advised Koninklijke Philips in relation to the sale of a 9.47% stake in TPV Technology in which Philips has agreed to sell 200 million shares in TPV Firm: Linklaters Client: Underwriters • This marks the first successful IPO by a Chinese property developer in Hong Kong this year • In 2009, Paul Hastings advised on six completed IPOs in Asia totaling over US$3.5bn • Paul Hastings also advised on nine top-up placements, rights issues, or bond offerings totaling over US$1.5bn in value for PRC and Korean issuers and banks
| DEBT MARKET | ►► Sino-Forest–Mandra Forestry Finance senior notes exchange 嘉汉木业集团 – Mandra Forestry转让债卷 Value: US$194m
Firm: Linklaters Client: Sino-Forest www.legalbusinessonline.com
• Deal completion is subject to CEIEC obtaining applicable consents, authorisations and approvals from the relevant government authorities in the PRC
| EQUITY | ►► Xiwang Sugar Holdings Company top-up placement 西王糖业配股 Value: US$43m
| PRIVATE EQUITY | ►► Tangshan Caofeidian EMCORE investment 唐山曹妃甸投資EMCORE Value: US$55m
►► Shimao Property Holdings Consent Solicitation 世茂房地产计划发行优先 债券 Value: undisc
Firm: Freshfields Lead lawyers: Alan Wang, Michael Han, Tim Wilkins, Bob Schlossberg Client: Tangshan Caofeidian Firm: O’Neil LLP Client: Emcore
| DEBT MARKET |
Michael Han Freshfields
Firm: White & Case Client: Emcore • Transaction is one of the largest outbound investments made by a Chinese state-owned enterprise from Hebei province • Transaction involved a complex restructuring of the US target in several jurisdictions, and is subject to regulatory approvals in both China and the US
| EQUITY | ►► China Sports International share placement 中国体育国际有限公司配股 Value: US$15m
Firm: Davis Polk & Wardwell Lead lawyer: William Barron Client: Sole solicitation agent (Morgan Stanley) Firm: Sidley Austin Client: Shimao
William Barron Davis Polk & Wardwell
Firm: Conyers Dill & Pearman Client: Shimao • Conyers provided Cayman law advice to Shimao and British Virgin Islands law advice to its subsidiary guarantors
| DEBT MARKET | ►► Kandi Technologies notes issuance and PIPE transaction Kandi Technologies发 行债卷 Value: US$10m
Firm: K&L Gates Lead lawyer: Willie Dennis Client: Kandi
Firm: Khattar Wong Lead lawyer: Nicole Tan Client: China Sports International
Firm: Greenberg Trauig Client: Underwriter
• KhattarWong also acted for Stirling Coleman Capital, the underwriter of China Sports International in its Singapore IPO in 2007
• Nearly a dozen lawyers from K&L Gates New York advised Kandi on corporate and securities tax opinion, and investment management opinion matters
Firm: Herbert Smith Lead lawyers: Ashley Alder, Kevin Roy Client: Placing agents • Xiwang Sugar Holdings, together with its subsidiaries, engages in the manufacture, distribution, and sale of sweeteners and corn co-products principally in China
“This deal marks the first takeover by a mainland brokerage of a Hong Kong listed counterpart and will enable Hai Tong to tap huge opportunities as the inflow of Chinese money into Hong Kong’s stock market continues to grow" Esther Leung, Dla Piper 7
NEWS | analysis >>
Analysis >>
SASAC sets qualification benchmarks for in-house counsel SASAC has moved up another gear in its continuing efforts to improve legal risk management within stateowned enterprises – it has issued new measures to ensure heightened competency and professionalism among in-house legal departments
T
he profile of the nascent in-house legal profession has gradually been rising over the past few years and the latest effort by the State Asset Supervision and Administration Commission (SASAC) to ensure a high standard of in-house legal profession within state-owned enterprises (SOEs) marks further official recognition of the profession’s rising importance. SASAC, which in essence is the regulatory body and shareholder of the state-owned equity interests in the central-level SOEs, issued provisional measures in May 2008 on assessing and administering job qualifications for in-house legal counsel of SOEs (《国有企 业法律顾问职业岗位等级资格评审管理暂 行办法》). Last year saw advances in its implementation and adoption by many central- and provincial-level SOEs. The measures set up a four-level framework for classifying and certifying individual in-house legal roles and their seniority. Any SOE in-house counsel can apply for the title of either assistant (junior), level three, level two or level one (most senior) corporate counsel, if all requirements and criteria for the corresponding title are met. Applications are reviewed and approved by a special panel appointed by the in-house counsel’s employer before the titles are finally authorised by SASAC. The criteria for each level, such as years of practical experience and relevant professional credentials, have been set forth in the measures. Passing the national corporate counsel examination, administered by the Ministry of Human Resources and Social Security (MoFRSS), and obtaining corporate counsel certification are the basic requirements for each level. Although the national examination was inaugurated in 1998 and holding the certificate has been a requirement
8
►► summary of sasac’s four-level framework for in-house legal roles Level/title
Credentials
Years of in-house legal experience Five years on level 2
Level 1 – senior professional
Bachelor degree and above; corporate counsel certificate
Level 2 – semi-senior professional
Bachelor degree and above; corporate counsel certificate
Five years on level 3
Level 3 – intermediate professional Level 4 – junior professional
Corporate counsel certificate
nil
–
Minimum one year’s experience
Other requirements High level of management skills; ability to lead and manage legal affairs of a department and a company Sound management experience; ability to coordinate and manage complex legal matters and issues nil nil
Note: Criteria in the table are indicative only. For a full list of criteria and requirements refer to SASAC’s provisional measures on assessing and administering job qualifications for in-house legal counsel of state-owned enterprises (SOEs) (http://www.sasac.gov.cn/n1180/n1566/n11183/n11244/4433500.html)
for employment in many positions, its mandatory status and its role in the professional development of in-house counsel has only been formalised now. “The measures have motivated – and will continue to motivate – in-house legal staff to take on further training or study, or upskill and upgrade their legal knowledge,” said Zhang Xiaofeng, the vice director of the contract and project division of Sinopec’s legal department. “The enhanced capabilities and professionalism of in-house counsel, and their improved performance and skills, will lead to a stronger and more effective management of state-owned assets.” Among many other legal staff in his company, Zhang sat the exam and obtained the corporate counsel certification after the measures took effect. Sinopec’s headquarters and important subsidiaries have a combined team of nearly 1,700 legal staff, with a majority of staff having already obtained corporate counsel certification. The rest are expected to obtain certification by the end of 2010. A tiered proposal to show appreciation for outstanding in-house counsel while increasing their compensation and
benefits is part of the new measures. The lower-than-market-average remuneration for in-house roles and limited promotion opportunities are regularly stated as two of the difficulties many SOEs face in retaining legal talent. “In corporations, only a very small percentage of the in-house legal counsel can climb up to management. Promotion opportunities in a corporate are rarer than in private practice,” said Wei Zhengxing, manager in charge of legal risk for China Southern Airlines. “The four-level professional qualification framework, therefore, creates a brand new channel for in-house counsel to progress in their careers and offers new
“The four-level professional qualification framework creates a brand new channel for in-house counsel to progress in their career and offers new incentives to advance their professional development” Wei Zhengxing, China Southern Airlines ISSUE 7.2
NEWS | analysis >>
►► State Owned Enterprises: quick statistics • By October 2009, 99 of the 132 central-level SOEs and 46% of the 1200 important subsidiaries thereof had established the general counsel system • By September 2008, 755 of the 1,028 provinciallevel SOEs had set up an in-house legal department and 349 had adopted the general counsel system. The total number of in-house legal staff employed by provincial-level SOEs was 16,000, of whom 4,696 had obtained the corporate counsel certificate • In 2008 the total number of M&A transactions (both at home and abroad) by central-level SOEs reached 423, a significant increase from the previous year
incentives to advance their professional development. Once an in-house counsel is granted a certain professionallevel title, the employer ought to raise compensation to match the national standard for that level,” he added.
Identity crisis
A division manager at the legal affairs department of a leading stateowned telecom company welcomed the measures but was unsure of their efficiency. “The launch of the measures demonstrates that the regulatory body understands and values the important role and responsibility of in-house legal counsel in corporations, but it may have a negligible effect in progression of the in-house legal profession,” the source said. “It’s uncertain to what extent this professional qualificationranking framework will be adopted and implemented by different SOEs, as it was issued by SASAC as Administrative Measures. Also, the ranking system technically is not acceptable or recognisable outside of SOEs.” As the division manager points out, the administering of in-house counsel is inconsistent among different sectors: The designations and requirements for in-house counsel in private companies, multinational companies and SOEs vary significantly. The corporate
SASAC’s continual efforts to improve legal risk management in SOEs
• Initiated a pilot program to implement the general counsel system in several central-level SOEs
Jul 2002
www.legalbusinessonline.com
counsel exam and certification, for example, are mostly required for in-house positions in SOEs. Private companies and multinational companies can hire lawyers who have passed the national bar exam or are admitted to practice law in foreign jurisdictions. “The fundamental problem is that in-house legal counsel are not regarded as ‘lawyers’ in the legal system, even though a significant number of them are advising on the law, practising law and providing legal advice and opinion to their internal clients,” the source said. Unlike other professionals such as accountants, economists and engineers, who are distinctly identified and clearly recognised across all of China’s different sectors, in-house legal professionals don’t have a single, official, unified representation before the public authorities. They have no defined rights and obligations – nor are their qualifications subject to a specific set of national regulations.
significant effort into improving the in-house legal profession and legal risk management of SOEs. He can also see the unique difficulties that in-house counsel have to endure in China. “The fact that in-house counsel’s employers are also their clients creates an in-built conflict-of-interest situation for in-house roles. This is one of the most difficult things for Australia’s inhouse profession. [So] in the context of Chinese SOEs it’s even more difficult, as in-house lawyers there have to ask the question: do they owe their duties to the regime, the party, the enterprise or the directors? It’s difficult to stand back and clearly sort out where their duties align.” As the famous saying goes, “the value of identity is that so often with it comes purpose”. Only when the identity of in-house counsel is clearly and formally defined by both public and private sectors in China will they as a profession be able to best serve their legal purpose. ALB
Situation abroad
国资委确立国有企业法律 顾问职业资格标准
In many developed countries such as Australia and the UK, practising as an in-house lawyer requires the same standing as private-practice lawyers (qualification as a solicitor). Privatepractice and in-house lawyers have exactly the same obligations and owe the same duties to their clients and the courts. And generally, only those lawyers who have been practising at a law firm for a number of years are taken on for in-house roles in these jurisdictions. “In-house lawyers have to face many complicated situations and a broad range of problems. Corporates and government bodies normally prefer employing people who have experience practising law in a law firm before going in-house,” said Peter Turner, the CEO of the Australian Corporate Lawyers Association (ACLA). Having participated in exchange programs regarding in-house legal practice and legal risks management initiated by SASAC, Turner understands that the Commission is putting
• Issued a policy requiring all important SOEs to adopt the general counsel system and establish an in-house legal department
May 2004
• Co-hosted the SASACACC international roundtable in Beijing on enterprise legal risk prevention
Mar 2005
• Launched the first public recruitment program to appoint the best and most competent general counsels on behalf of large SOEs
Aug 2006
随
着国有企业的规模逐步扩大和法律制度不断完 善，国企内部的法律顾问管理制度也在不断健 全。国有资产监督管理委员会（国资委）已发布新管 理措施，以确保国有企业法律顾问专业水平达到较高 标准，同时表明政府充分注重法律事务在企业发展运 作中日益重要的地位和作用。 作为国有企业的监管机构和中央直属国有企业的国 有股权持股机构，国资委于2008年4月出台《国有企 业法律顾问职业岗位等级资格评审管理暂行办法》。 去年，该管理办法在诸多中央直属和省属国有企业之 间得到良好的贯彻和执行。 管理办法确立四级职称框架制度，用于对企业法律 顾问的专业资格和资历进行分级和认证。如满足规定 的条件，任何国有企业的内部法律顾问均可申请岗位 等级资格，分为助理、企业三级法律顾问、企业二级 法律顾问或企业一级法律顾问（最高级别）。申请须 首先通过企业指定的评审委员会的评审，然后由国资 委最终颁发证书。 管理办法明确规定各个等级资格的标准，例如工作 年限和相关专业学历。无论申请哪个等级的职称，申 请人都必须通过人力资源和社会保障部组织的全国企 业法律顾问考试，并获得企业法律顾问执业资格。尽 管该全国考试早在1998年已经开展，获得资格证书 才能取得企业法律顾问职称考核还是首次作为正式制 度予以确立。 中石化法律部合同与项目部副主任张先生表示：“管 理办法将鼓励企业法律顾问参加培训或学习，不断提
• Issued provisional measures on assessing and administering job qualifications for in-house legal counsel within SOEs
Apr 2008
• Launched a new three-year plan to promote in-house legal departments and the general counsel role in subsidiaries of SOEs. According to the plan, all important subsidiaries of the central-level SOEs should have appointed general counsel and set up an in-house legal function by 2010
Oct 2009
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NEWS | analysis >>
高法律知识和专业水平。企业法律顾问专业能力的提 升，将有助于更高效地管理国有企业资产。” 管理办法施行后，张先生与公司内部的其他几位法 律顾问一同参加了2009年的考试，并取得企业法律顾 问证书。中石化总部和重要附属公司的法律团队共有 近1,700员工。其中多数已经取得企业法律顾问证书， 其他员工计划于2010年底获得执业资格。 管理办法的另一目的是，表彰杰出的企业法律顾 问，提高其薪酬和福利。国有企业的法律顾问收入 低于市场平均水平，晋升机会有限，已成为众多国 有企业挽留出色法律人才的障碍之一。管理办法为 克服该障碍提供了解决方案。 中国南方航空公司主管法律风险管理的魏经理表 示：“在国有企业，只有少数内部法律顾问有机会担 任管理职位。与律所相比，晋升机会更少。因此，四 级职业资格等级框架可为企业法律顾问提供全新职业 晋升渠道，也为法律顾问提高专业水准提供激励因 素。企业法律顾问获得特定等级资格后，企业须提高 薪酬，使其符合该等级资格的全国标准。”
身份危机
一家领先国有电信公司法务部业务经理表示：“管 理办法的施行是积极的信号。表明政府充分认识到 企业法律顾问是一种专业职业，需要专业能力。管 理办法还表明，监管机构充分肯定企业法律顾问的 重要作用和责任。” “不过，该措施对于企业法律顾问职业的发展可能 带来的影响不太大。对于不同的国有企业而言，是 否会采纳并执行这种职业资格等级框架尚不明确， 因为该管理办法是国资委行政管理措施。此外，该 等级制度在国有企业以外的领域无法得到承认。” 正如消息人士所指，企业法律顾问的行政管理在两 个不同的领域存在差异：民营企业、跨国企业和国有 企业对法律顾问的任命和要求迥异。例如，企业法律 顾问考试和证书主要是国有企业内部职位的要求，对 民营企业和跨国公司而言，聘请通过国内司法考试或 取得境外地区法律执业资格的人士即可。 该法务部业务经理指出：“最根本的问题在于，尽 管大量的企业法律顾问提供法律顾问服务，从事法律 工作，并向内部客户提供法律建议和意见，但根据 中国的法律体系，企业法律顾问并不被视为‘律师’。” 对会计师、经济师和工程师而言，他们具有明确的身 份，在全国不同行业都得到认可，企业法律顾问与之 不同，他们没有唯一、正式且统一的身份认定。他们 没有明确的权利和义务，也没有明确的国家法规管理 其专业资格。 在多数发达国家，例如澳大利亚和英国，企业内部 律师与事务所律师的执业资格要求相同，即必须取得 律师资格。不过大多数情况下，企业更愿意聘用在律 师事务所有数年工作经验的律师担任企业法律顾问。 澳大利亚企业律师联合会（ACLA）首席执行官 Peter Turner 表示：“企业法律顾问必须面对复杂的情况和多 种问题。企业和政府机构通常更愿意聘请在律师事务 所有过工作经验的律师提供内部法律服务。” 从宏观角度出发，发达国家的执业律师和企业法律 顾问拥有相同的义务，需要向客户和法庭履行相同的 职责。不过，企业法律顾问还需要应对额外的复杂情 况。Turner 表示：“实际上，企业法律顾问的雇主亦是 其客户，会使企业法律顾问面临利益冲突的情况。企 业法律顾问必须充分认识到潜在的利益冲突。” Turner 曾参与个别由国资委组织的企业法律顾问执 业和法律风险管理交流项目，他充分认识到，国资委 正积极努力提高企业顾问律师的专业能力，改善国有 企业的法律风险管理。他还认识到，中国的国有企业 法律顾问须面对的特殊难题。“对澳大利亚企业法律 顾问而言，内部利益冲突是最困难的问题之一。对中 国的国有企业而言，该困难更为严峻，因为中国国有 企业的法律顾问将不断提出问题 – 他们到底该对谁负 责，是国家制度、党、企业还是董事会？他们很难明 确判断自己究竟职责何在。” 正如一句名言：“身份的价值在于，身份往往与职 责密不可分。”只有在国家明确界定企业法律顾问身 份之后，国有企业的法律顾问才能充分履行他们的 工作职责。
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Analysis >>
The 'counsel' position: good for lawyer, firm or client? Are international firms increasingly using the title 'counsel' to provide an extra career path for their lawyers or an extra weapon in their business development agendas? ALB finds that the truthful answer varies from firm to firm and lawyer to lawyer...
I
f building capacity with lateral hires and partner relocations will be considered as one trend among international firms in 2010, then en-masse counsel promotions must be another. In January alone a significant number of international firms either promoted senior associates to counsel or made lateral counsel hires. Clifford Chance, Davis Polk, DLA Piper, Latham & Watkins and Vinson & Elkins, to name a just few, have all promoted lawyers to counsel. The principle motivation for firms to elect lawyers to counsel – a rank between senior associate and partner – is obvious: recognizing their outstanding performance and contribution to the firms. “In our firm, counsel promotion is the management committee’s recognition of specific senior associates who have distinguished themselves with expertise in a certain area of law, and have demonstrated excellence in practising law. It’s a compliment to their skills and capability,” said Jay Cuclis, a member of Vinson & Elkins’ management committee and the head of the firm’s Asia practice. Vinson & Elkins formally adopted the counsel program firm-wide in 2006, when it promoted 40 senior
associates to counsel globally. In January this year, the firm announced the promotion of Beijing senior associate Nicholas Song to counsel – the first counsel in its China offices. Song, who joined the firm in 2000, focuses his practice on international arbitration and dispute resolution matters. “The role of counsel is to help manage clients’ legal matters and supervise and mentor junior lawyers. On a regular, ad hoc basis, we consider whether certain lawyers should be elected to counsel,” said Cuclis.
Stopover or destination?
As every firm classifies the career potential and responsibilities of the counsel role differently, it is sometimes unclear whether the position is a stepping stone, or an alternative, to partnership. At Vinson & Elkins, any counsel could be at any time elevated to partner, and equally, some associates will be considered directly for partnership. “Counsel is not necessarily an intervening step in the partner promotion process, but rather a designation for certain associates to play a greater role,” said Cuclis. Lovells, on the other hand, uses the position as part of its promotion ladder, ISSUE 7.2
NEWS | analysis >>
often for people who have partnership potential but aren’t quite ready. However, in principle, senior associates are still able to move straight into the partnership. “As practice evolves, it’s normal for lawyers to come through to counsel. From a client’s perspective, it suggests a level of seniority and it’s a good thing to deal with someone more senior. It’s also good for the individual lawyer who wants to feel his achievement being recognised,” said Jamie Barr, Lovells’ head of corporate in Asia. Barr also sees the counsel position as a good intermediate step for top talent who are on track for partnership. “A partner’s job is very different from that of an associate. It involves more management, business development and client management. Bringing top-flight lawyers through to this intermediate step makes it easier for them to undertake business development, helps them gain the confidence of their clients, and prepares them for the next step,” said Barr. At Lovells, counsel and consultants are involved not only in front-line transactional advisory work but also with certain department and client responsibilities. Currently, the firm has 14 counsel and consultants in Greater China (nine in Hong Kong, four in Shanghai and one in Beijing). Barr said a number of candidates for the upcoming round of partner promotions in Asia were in counsel and consultant positions. At other firms, counsel can be a title for lawyers who want more flexibility with work schedules than partnership offers; associates that are not interested in the partner track; or senior lawyers coming to a firm from public service or corporations who have no business.
Economic realities
It’s debatable whether one designation is better than another, but promotions need to be justified by the business environment as firms become savvier about profitability. The contributions of senior non-partners are increasingly recognised as critical to a firm’s financial well-being. As long as the role makes sense in financial terms, counsel will have strength and prestige in the firm hierarchy. “When the pressure for business origination is high, firms will want to have more people actively involved in business development. The counsel role www.legalbusinessonline.com
allows more senior lawyers to build a book of business,” said Frazer Xia, the founder and managing director of leading legal recruitment firm China Legal Career. “Profit per partner (PEP) is also an essential concern when it comes to partner promotion. If a firm expands its partnership too quickly, its PPP may be diluted. So when firms are not so comfortable about promoting someone to the partnership immediately, they can appoint the lawyer to counsel first,” Xia said. Having the role of ‘counsel’ can clearly have a favourable impact on a firm’s bottom line: charge-out-rates for counsel are generally higher than those of senior associates and in some cases can approach that of junior partners. A former counsel at a Magic Circle firm’s Shanghai office who is now a partner of a PRC firm provided a case in point. The source told ALB China that when he was counsel his hourly rate was up to US$200 higher than some of the senior associates. “Counsels are more like partners than associates; they could have their own clients, manage their own cases and participate in certain management tasks. They contribute considerably to firms’ revenues without having a share in the profits,” he said.
According to another leading international legal recruitment firm, the remuneration packages for counsel in different firms vary vastly. The salary range for counsel who are on track to partnership in US Top 50 firms can be anywhere from US$250k to US$400k. However, in some cases a permanent counsel who doesn’t want to become partner and doesn’t do business development can earn up to US$600k due to his important role and seniority in a firm. Nevertheless, these figures are significantly lower than from what senior partners can earn. The source also witnessed the trend towards a widening use of counsel roles in the Asia offices of some international firms. “A few years ago, international firms tended to promote senior associates directly to partners in Asia. But using the counsel role as a transition to partnership seems the obvious route now,” he said. As the prospects for 2010 brighten it’s reasonable to expect that the count of counsel in international firms will grow in line with that of associates and partners. In some cases this will be a good thing for lawyer, firm and client alike; in others, it will not. ALB
►► Recently promoted counsel Firm Clifford Chance Davis Polk DLA Piper Latham & Watkins Vinson & Elkins
Name David Lam Gerhard Radtke Jenny Liu Karen Yan Nicholas Song
Location Shanghai Hong Kong Beijing Shanghai Beijing
Practice area Banking and finance Capital markets Corporate finance Corporate Dispute resolution
晋升“顾问”：律师、律所或客户谁能获益？
在
2010年，如果说通过横向招聘和合伙人调动 是跨国律所巩固业务实力的趋势之一，那么日 渐普遍的‘顾问’晋升则是另一趋势。仅在今年1月， 诸多跨国律所已扩大他们的‘顾问’级律师团队。他们 或将高级律师晋升为顾问律师，或通过横向招聘吸 引新顾问律师加入。 高纬绅、达维、欧华、瑞生和文森•艾尔斯等律师 事务所均将部分律师晋升为顾问律师。顾问律师是 介于高级律师和合伙人之间的职位，律所将律师晋 升为顾问律师的动机十分明显：表彰律师的卓越业 绩和对律所的贡献。 文森•艾尔斯管理委员会成员兼律所亚洲业务主管 Jay Cuclis 表示：“对文森•艾尔斯而言，部分律师在 特定业务领域表现突出，展示卓越的法律服务能力， 晋升顾问律师是管理委员会对其的嘉许。这是对律师 专业能力的表彰。”文森•艾尔斯于2006年全面引入 顾问律师晋升计划，在全球范围内将40位高级律师 晋升为顾问律师。 今年1月，该律所宣布，将北京高级律师 Nicholas Song 晋升为顾问律师，使其成为中国办事处的首位
顾问律师。Song 于2000年进入文森•艾尔斯，重点业 务领域包括国际仲裁和纠纷调解事务。Cuclis 表示：“ 顾问律师的职责在于，协助管理客户的法律事务，监 督并辅导初级律师。我们会定期考虑是否将特定律师 晋升为顾问律师。”
中转站还是目的地？
不同律所对顾问律师的职业前景和职责的定义各不相 同，有时律师也会对该职位的意义产生疑问 – 这到底 是继续升职的踏板，还是合伙人职位的替代品？ 根据文森•艾尔斯的制度，任何顾问律师都可能在 任何时候被晋升为合伙人，同样，部分律师也有机 会直接成为合伙人。Cuclis 表示：“顾问律师并不一 定是成为合伙人的中转站，主要是帮助特定律师充 分发挥个人能力的职位。” 路伟则将该职位用作晋升阶梯的一部分，通常向具 备合伙人潜质但尚未做好准备的律师提供该职位。不 过高级律师原则上仍能直接成为合伙人。路伟亚洲公 司业务主管 Jamie Barr 表示：“随着业务不断发展，律 师通过担任顾问律师一职后再成为合伙人十分正常。
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NEWS | analysis >>
►► Counsel roles - cheaper for the firm or the client? Title Senior associate (8 years) Counsel Partner (equity)
Hourly chargeout-rate 500-600
Annual remuneration 250K - $300K
600 – 700 700 – 1000
300K - 400K From 500K to 3M
Analysis >>
Note: figures are provided by CLC as an indication only
从客户角度出发，该职位是资历的证明，由职位更高 的律师提供服务会令客户感觉更好。对于希望自己的 成绩得到认可的律师而言，该职位亦有所帮助。” Barr 认为，对有可能成为合伙人的优秀人才而言， 顾问律师一职是很好的过渡。他表示：“合伙人的工 作与律师的工作迥异。合伙人须更多关注业务管理、 业务发展和客户管理。通过担任顾问律师作为过渡， 优秀律师人才能更轻松地应对业务发展需要，帮助他 们赢得客户信赖，为下一步晋升做好准备。” 路伟的顾问律师和法律顾问不仅参与一线交易顾问 工作，还肩负一些部门和客户管理职责。目前，路伟 在大中华地区拥有14位顾问律师和法律顾问（9位在 香港，4位在上海，1位在北京）。Barr 表示，亚洲地 区下一轮合伙人晋升的候选名单中，有几位是顾问律 师或法律顾问。 对于其它律所，担任顾问律师的情况包括：律师希 望得到比合伙人更灵活的工作时间安排；律师对合伙 人工作不感兴趣；或高级律师来自政府部门或企业尚 未参与业务发展活动。
经济现实
任何晋升都必须与业务环境相符，因为律所开始更加 注重盈利能力。非合伙人的高级职位对律所的财务稳 健日益发挥重要作用。只要在财务方面能令律所获 益，顾问律师一职在管理架构中定会有存在的理由。 领先法律人才招聘公司华律伟业创始人兼执行总 监夏海宁表示：“在业务开源压力较高的情况下，律 所希望更多人员积极参与业务开拓。顾问律师一职 使更多律师能够参与到业务开拓过程中。” 夏海宁认为：“就合伙人晋升而言，合伙人人均利润 （PEP）亦是重要考虑因素。如律所的合伙人队伍增长 过快，PPP 会被稀释。因此，如果律所不愿过快将某 位律师晋升为合伙人，往往先将其晋升为顾问律师。” 顾问律师一职对律所的效益无疑有积极作用：顾问 律师的收费一般超出高级律师，有些情况下甚至接近 初级合伙人的收费。 曾在某英国五大律师事务所上海办事处工作的顾问 律师（现任一家中国律所合伙人）向《亚洲法律杂志 （中国版）》透露，担任顾问律师时，他的小时收费 标准高出部分高级律师达200美元。他介绍道：“与律 师相比，顾问律师更接近合伙人；顾问律师可以有自 己的客户，管理自己的案件，并参与特定管理工作。 顾问律师为律所收入做出较大贡献，但得不到类似合 伙人的利润分红。” 据另一家领先的跨国法律招聘公司介绍，不同律 所向顾问律师提供的薪酬迥异。对于美国前50律师 事务所而言，有可能成为合伙人的顾问律师年薪在 25万美元至40万美元之间。不过，在某些情况下， 不愿意成为合伙人且不参与业务开发的终身顾问律 师却可得到60万美元的薪酬，这主要取决于该律师 在律所的重要作用和资历。尽管如此，以上数字仍 大幅低于高级合伙人的收入。 透露内情的律师还介绍道，部分跨国律所的亚洲办 事处正积极扩大对顾问律师一职的使用。他表示：“ 几年前，亚洲的跨国律所大多将高级律师直接晋升 为合伙人。但就目前来看，将顾问律师一职作为过 渡已成为明显的趋势。” 鉴于2010年行业前景看好，可以合理预计，跨国 律所的顾问律师人数将与律师和合伙人保持相同的 增幅。在某些情况下，该趋势可令律师、律所和客 户受益；但在其它情况下或许并非如此。
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New rules force many firms to change name
I
n line with the growing profile and depth of the legal services industry, the Ministry of Justice (MOJ) has promulgated new measures for the administration of domestic law firm names. The new legislation, Measures for the Administration of Names of Law Firms, aimed to strengthen management systems and standardise the use of law firm names, repealing similar legislation that was enacted in 1995, is very critical as the number of law firms in China ballooned 15,000 in 2009. There are six chapters and 30 items which provide clarification on the rights and obligations of a firm and its name. The legislation also further regulates the composition of a firm’s name and that of its branch offices.
Prohibited uses
One of the notable aspects of the new legislation is the prohibition of the usage
“Some ‘legal groups’ do not share resources or split earnings and so removing the term ‘legal group’ defeats the purpose of what the phrase is intended to imply” Li Daofeng, Grandall
of specific phrases like ‘legal group’（律师 集团） or ‘law alliance’（律师联盟）. “The use of labels like ‘legal group’ or ‘law alliance’ is not legitimate as firms with these labels are unregulated and do not operate under a standard business procedure,” an MOJ spokesperson explained. “Some of these firms are formed by a consortium of smaller firms which operate independently and therefore cannot identify a head office.” ISSUE 7.2
NEWS | analysis >>
Update >>
CIETAC COLUMN
2
贸仲,受案量持续增长
009年，贸仲受案数量再创新高，受理及审结经贸仲裁案件数量 均大幅增长。2009年，贸仲受理案件总计1482件，同比增加252 件，增幅达20.5%；其中涉外案件559件，同比增加11件，增幅 为2%；国内案件923件，同比增加241件，增幅为35.3%。贸仲受理案 件及案件程序管理的国际化程度不断提高。具体体现为： 第一，案件当事人遍及世界各地。2009年新受理案件的当事人来自亚 洲、欧洲、北美洲、南美洲、非洲和大洋洲，涉及54个国家和地区。 第二，中立公平的纠纷解决场所。贸仲2009年受理的涉外案件中，双 方均为外国或港澳台地区当事人的案件33件，占涉外案件的5.9%。 第三，双语服务，为境外当事人提供便利。贸仲新受理案件对仲裁 程序语言有特殊约定的77件，其中以英文或中英文双语为仲裁程序 语言的案件明显增加。 第四，香港和台湾地区仲裁员、外国籍仲裁员接受指定办理贸仲 案件的人数显著增加。不同法律文化背景的仲裁员同庭审案，相互交 流，彼此借鉴，不仅满足了当事人对于审理方式，尤其是庭审方式的 不同需求，而且有利于宣传贸仲和中国的仲裁法律制度，对宣传中国 的投资环境也起到积极作用。 第五，坚持当事人意思自治原则，尊重约定，增强程序的灵活性。 贸仲2009年受理的案件中，对程序规则有特殊约定，包括对仲裁庭组
成方式及仲裁员国籍、仲裁地和开庭地有特殊约定的案件达329件，占 受案总数的22.18%。对于当事人的特殊约定，贸仲在不违反仲裁地法 律强制性规定并能够操作的前提下，均给予尊重。 同时，在与国外及港澳台地区仲裁机构的合作方面，据不完全统 计，贸仲先后与瑞典斯德哥尔摩商会仲裁院、台湾中华仲裁协会、 香港国际仲裁中心、国际律师协会、纽约州律师协会、伦敦国际仲 裁院、伦敦海事仲裁员协会、德国仲裁院、法兰克福工商会、俄罗 斯工商会、国际商事仲裁院、蒙古工商会蒙古国家仲裁院、日本商 事仲裁协会、大韩商事仲裁院、朝鲜国际贸易仲裁委员会和哈萨克 斯坦国际仲裁院等多家仲裁机构合作举办了多 场活动，增进友谊，加强合作，提升了贸仲的 国际品牌。 （摘编自：《贸仲2009工作报告暨2010年度计划》。预知更多 详情，请参见CIETAC网站：www.cietac.org）
梁华, 中国国际经济贸易仲裁委员会 仲裁员 电邮: lianghua@cietac.org 地址: 中国北京西城区桦皮厂胡同2号国际商会大厦六层 邮编: 100035 电话: +8610 82217788 | 传真: +8610 82217766 / 64643500
►► Firms affected by new legislation Firms Capital Equity Legal Group 京衡律师集团 Grandall Legal Group 国浩律师集团 Heilongjiang Far East Lawyer Group 黑龙江远东律师集团事务所 Jinyan Legal Group 金研律师集团 TC Lawyer 湖南通程律师集团事务所 Zhongcheng Lawyer Group 众成仁和律师集团 Zhonghao Law Firm 中豪律师集团
Why affected Use of ‘legal group’
Offices Hangzhou
Use of ‘legal group’ Use of ‘lawyer group’
Beijing, Shanghai, Shenzhen, Guangzhou, Hangzhou, Tianjin, Kunming, Chengdu, Hong Kong and Ningbo Heilongjiang
Use of ‘legal group’
Beijing
Use of ‘律师集团’
Hunan
Use of ‘lawyer group’
Shandong
Use of ‘律师集团’
Beijing, Shanghai, Hong Kong, Chongqing, Sichuan
‘Legal groups’ structured in the way referred to by the MOJ are expected to be most affected by the new measures, but not all are happy about it. “Firms often undertake the name of ‘legal group’ or ‘legal alliance’ because it implies a larger-sized firm with significant resources. These ‘legal groups’ do not share resources or split earnings and so removing the term defeats the purpose of what the phrase was intended www.legalbusinessonline.com
to imply,” said Li Daofeng, a partner of Grandall. He said his firm operates differently, as it is the only law firm in China that is registered with the MOJ. All other domestic firms are registered with their own regional and district judicial offices. Grandall was given the status of ‘legal group’ as a pilot project, when the firm established itself in 1998 via a merger of Beijing Michael Zhang & Associates,
梁华
Shanghai WanGuo Law Firm and Shenzhen TangRen Law Firm. “At the time of Grandall’s establishment, it was the MOJ’s initiative to label us a ‘legal group’ in view of the unique business structure,” said Li. “Before the promulgation of the new measures, we were approached by the MOJ in an attempt to resolve this issue. We are currently still negotiating terms with the authorities since our circumstances are different,” said Li. He said that Grandall is now recognised as a brand so it is unlikely that the firm will be affected by the omission of the term ‘legal group’ from its name.“Even if it comes down to changing our firm name, I don’t think it will cause a big impact on our business. All we would have to do is to omit ‘legal group’ and have our name as Beijing Grandall Law Office (北京国浩 律师事务所).”
Renaming branch offices
The MOJ has also recognised that domestic firms are increasingly expanding via absorbing or merging with smaller regional firms. Consequently, 13
NEWS | analysis >>
►►Quick facts: Measures for the Administration of Names of Law Firms 2010
• Promulgated 4 January 2010 and repeals Measures for the Administration of Names of Law Firms 1995; takes effect from 1 March 2010 • Clarifies the rights and obligations of law firms regarding their names – for example, names should not be misleading or deceptive • Law firms may not use wordings such as ‘legal group’（律师集团）or ‘law alliance’（律师联盟）as part of a name • Approval period for firms to set up offices has been reduced by 20 days to 10 days (previously 30 days) • Law firms may translate name into a foreign language according to its business needs and submit its foreign name to the Judicial Administrative Authority and record filing • Firm names should encompass: * provinces or autonomous regions and municipalities of headquarters, * name of firm * city of branch office * ‘law office/ law firm’
another clause in the new legislation stipulates the specific naming requirements for a firm’s branch office – province of headquarters, name of firm and city of branch office. For example “Zhong Yin Law Firm Shenzhen branch” will have to change to “Beijing Zhong Yin Shenzhen Law Firm” (中银律师事务所深圳分所－北京中 银(深圳)律师事务所). Having to use the term ‘branch office’ (分所) in a name has been unpopular with some firms as it connotes separation of a firm’s branch office from its headquarters, in terms of competency. The term has hindered the development of branch offices as they have been perceived only as being subsidiary operations by potential
clients. The change also reflects recognition on the part of the MOJ that the old rules are no longer proficient for the current legal market. Branch offices, it is hoped, will now be perceived as being on the same level of professionalism as their headquarters and will consequently feel the need to improve the quality of services provided. The potential costs to law firms to rename their branch offices is unknown, with firms like Dacheng and King & Wood (with over 28 and 16 Asian branches respectively) set for a lot of work to implement the changes.
Fair competition
Chinese firms that have been
notorious for having similar brands that are often hard to differentiate between are now subjected to scrutiny for having misleading or potentially deceptive titles. While in the past, smaller and newer firms may have benefited from indirect associations with firms with bigger reputations, the new legislation aims to make this impossible in the future. Lawyers are mostly in favour of the changes. “There are quite a few cases where there are domestic firms who have named their firm very closely to that of an international firm. That is an unethical method and should be discouraged,” said Henry Mao, a partner at Jin Mao P.R.C. Lawyers. “Law firms are service providers and clients need to be able to identify the most suitable legal service providers to fit their business needs,” he added. “When firm names fail to provide the most basic purpose of identification, clients end up with a firm that doesn’t tender what it implies it can.” The new legislation is part of China’s increasing efforts to restructure its legal system and lawyers agree that the timing of the legislation is perfect. “With all the newcomers and firm expansions going on, there is definitely more need for stricter regulations,” said Grandall’s Li. ALB
新法规或将迫使众多律所更名
随
着法律服务行业不断向深度和广度发展，中国 司法部制定全新管理办法，监管国内律师事务 所的名称。刚刚公布的新的《律师事务所名称管理 办法》，旨在强化管理制度，总结律所名称管理实践 经验、规范名称管理、便于公众识别、促进律所业务 发展。鉴于2009年中国律师事务所数量已达到15,000 家，新管理办法的实施迫在眉睫。 管理办法共分六章30条，明确规定律所及其名称的 权利和义务，确立律所名称预核准制度，规定了律师 事务所命名的规则及禁止使用的内容和文字，并调整 了分所命名方式等。
禁用名称
值得注意的是，新法规禁止使用“律师集团”或“律师 联盟”等文字。 司法部新闻发言人解释道：“ 律师集团或律师联 盟这种称谓缺乏法律依据，实践中的做法也各行其 是，很不规范。使用此类名称的律师事务所不符合 监管规定，并未按照标准业务流程开展经营。部分 类似律所由多个小律所组成，各自独立经营，无法 确定其总部。” 司法部所指的“律师集团”预计受新法规的影响最 大，但并非所有人都欣然接受。 国浩合伙人李道峰表示：“律师事务所经常使用‘律 师集团’或‘律师联盟’的名称，因为该名称体现出律所 规模较大，拥有更多资源。 可是这些‘律师集团’并不 分享资源或分配收入，修改名称将会影响名称的含 义。” 但国浩采用与众不同的经营方式，是唯一一
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家在司法部注册的中国律师事务所。其他所有国内 律所均在各自所在地区注册。 国浩率先在中国探索“律师集团”经营模式，1998年 通过北京市张涌涛律师事务所、上海市万国律师事务 所、深圳市唐人律师事务所合并成立。李道峰表示：“ 在国浩成立时，是司法部根据我们独特的业务结构建 议命名为‘律师集团’。” 他表示：“新管理办法颁布之前，司法部曾与我们沟 通，尝试解决名称问题。鉴于我们情况特殊，律所目 前仍在与监管机构协商解决名称问题。”他认为，国 浩现已成为法律界的品牌，名称中去掉“律师集团”的 用词不会给业务带来影响。“即使需要改变名称，我 认为对国浩的业务也不会有太大影响，可能只要去 掉‘律师集团’就行。”
分所命名方式
司法部注意到，目前设立分所的方式，既有由总所在 异地派驻律师或吸纳当地律师设立的传统方法，也有 总所采用兼并、合并等方式将异地律师事务所改造为 分所的做法，后一种方式有增多的趋势。因此，新管 理办法有条款对律所分所的命名标准作出规定－总所 所在地省、总所字号、和分所所在地的市行政区划地 名。例如，“中银律师事务所深圳分所”应改为“北京中 银(深圳)律师事务所”。 部分律师事务所并不愿意在名称中使用“分所”文 字，因为该名称意味着分所在业务能力方面与总部分 离。分所名称有可能阻碍分支机构的业务发展，因为 潜在客户会认为该分所只是附属机构。规定的变化还
表明，中国司法部认识到，旧规定已不适合当前法律 服务市场的发展。 业内人士希望分所的名称能得到市场的认知，在专 业水准方面给客户留下与总部相同的印象，同时亦促 使分支机构努力提高服务水准。 律师事务所为分所改名所需的潜在成本尚不得而 知，但类似大成和金杜（分别在亚洲地区设有28和16 家分所）等大型律所，在新规定实施后必然需要开展 大量工作、投入开支为分支机构更名。
公平竞争
一些国内律师事务所的名称往往近似，因此导致客户 难以区分，具有误导性或潜在欺骗性的名称将受到严 格审查。在过去，小规模或新成立的律师事务所会使 用与著名律所近似的名称，从而在争取业务的过程中 获益，新法规有望结束该现状。 多数律师均拥护此项改进。金茂律师事务所合伙人 毛慧刚表示：“某些国内律师事务会采用与跨国律所类 似的名称，这种行为并不少见。这是一种不道德的做 法，应严令禁止。” 他补充道：“律师事务所是服务提供机构，应让客户 能通过品牌名称明确最适合的法律服务提供机构，从 而满足其业务需求。如果律所名称无法提供最基本的 区分度，客户很可能选择不具备服务实力的律所。” 新法规是中国积极改进法律体系的努力之一，律师 普遍认为，新法规的颁布时机恰到好处。国浩的李道 峰表示：“在新律所不断涌现且现有律所不断扩大规模 的背景下，更为严格的监管措施尤其必要。” ISSUE 7.2
NEWS | news >>
Wuhan >>
Zhonglun W&D taps into new domestic markets Z honglun W&D’s latest addition to its list of offices seems to indicate that the national expansion of leading firms will continue to accelerate over 2010. Less than a Chen Wen year after its launch in Zhonglun W&D Riyadh, the firm has received regulatory approval to proceed with its office opening in Wuhan. “As economic activity is picking up rapidly in Wuhan, launching a presence in the central China region to tackle business flowing to and from the Yangtze Delta River region is most significant to our practice,” said Chen Wen, managing partner of Zhonglun W&D. Partner Wang Aiguo and Xiong Guosheng have both been relocated to the new location. The Wuhan branch, currently staffed with ten lawyers who have been both relocated and recruited locally, will focus on corporate, real
estate, infrastructure, labour and finance work. With its GDP breaking almost US$58bn in 2009, Wuhan, the capital of Hubei province and a major commercial centre in central China, may very well be another target destination for domestic firms looking to expand. Beijing Dacheng, Kangda, Zhong Lun and Guangzhou D&S have all established presences in Wuhan.
Zhonglun W&D now has offices in Wuhan, Shanghai, Chengdu, Shijiazhuang, Tianjin, Hong Kong, London, Paris and Riyadh. The firm is currently waiting for regulatory approval to open in Taiyuan in Shanxi province. ALB
中伦文德开辟新兴国内市场
继
利雅得分所成立不到一年后，中伦文德得到监 管机构的批复在武汉成立分所。此举表明在 2010年中国领先律所扩大规模的趋势将继续加速。 中伦文德主管合伙人陈文表示：“鉴于武汉经济迅速 发展，为把握长三角地区的业务机会，在中部地区开 展业务对我们的发展至关重要。” 合伙人王爱国和熊国胜被派至新分所任职。武汉分 所目前有十位律师，均来自内部调派和本地招聘，业 务重点包括公司事务、房地产、基础设施、劳动法和 金融业务。 2009年，武汉的GDP突破580亿美元，作为湖北省 省会和中国中部的重要商业中心，这里将成为本土律 所扩张业务的又一目的地。北京大成、康达、中伦和 广州德赛均在武汉成立分支机构。 目前，中伦文德已在武汉、上海、成都、石家庄、 天津、香港、伦敦、巴黎和利雅得建立分所。在山西 省太原市成立分所的申请正等待监管机构的批准。
Zhonglun W&D Law Firm and McGuireWoods LLP co-host “The Investment and Financing Strategies & Services of Chinese Auto Parts Industry 2010 Summit Forum” in Tianjin.
O
n January 14th to 16th of 2010, Zhonglun W&D law firm and McguirWood LLP, one of famous US law firms, held “The Investment and Financing Strategies & Services of Chinese Auto Parts Industry 2010 Summit Forum” in Tianjin Economic Technology Development Area(TEDA), located in Binhai District, cooperating with CHINA4AUTO.com, a website of automobile section with great influence. With more than 900 lawyers and 18 strategically located offices worldwide, McGuireWoods LLP is one of the largest law firms in the world. In recent years, Zhonglun W&D has formed a stably strategic relationship with McGuireWoods in an effort to comprehensively serve a range of global clients, especially assisting Chinese automobile manufacturers planning to sell vehicles in the United States and Europe, as well as Chinese auto parts manufacturers exporting products to the United States and Europe. Partners of Zhonglun W&D, Mr. Hao
www.legalbusinessonline.com
Wang and Mr. Wei Lin, and American attorneys of McGuireWoods, Tracy Walker, Mark Brzezinski and Derek Swanson, participated the Summit Forum. During the forum, Mr. Wei Lin and Mr. Tracy Walker were interviewed by Xinhua Finance and other media. Mr. Hao Wang made a speech concerning “China FDI Policy and Laws”. Mr. Tracy Walker delivered another speech on “How to do business in America” for Chinese automobile industry. Distinguished home and abroad Guests of this forum include China Automotive engineering Academic society, the TEDA Administrative Commission, Xi’an High-tech Zone, Nanjing New and High Technology Industry Development Zone, Changzhou High-tech Zone, Nantong High-tech Zone, Hefei Hightech Zone in Anhui province, MINTH GROUP, BOSCH, JOHN DEAR, etc.. Administrative Commission of Gu’an Development Area. U.S. Commercial Counselor in Shanghai also attended the forum.
Firm Profile
Zhonglun W&D
Mr.Hao Wang is doing a speech in the forum
Zhonglun W&D 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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NEWS | news >>
news in brief >> NQs offered A$175,000 in London ►► Earning big in London Firm Bingham Latham & Watkins Debevoise & Plimpton Skadden Cleary Gottlieb
NQ salary in pounds 100,000 96,000 94,250 94,000 92,000
Recruitment >>
Domestic firms hungry for international talent
London has once again emerged as an attractive destination for top legal talent, after revelations that Bingham McCutchen is offering newly qualified lawyers £100,000 (A$175,000) salaries. And while Bingham pays the highest salaries in the UK for new recruits, it is far from alone in lavishing riches on young lawyers who show promise. Bingham’s fellow US firm Latham & Watkins pays London NQs £96,000 (A$168,000) and Debevoise & Plimpton pays a generous £94,250 (A$165,000). Many Londonbased US firms in fact pay far more than their Magic Circle competitors, whose salaries for new lawyers average £65,000 (A$114,000).
伦敦律所为新执业律师开出10万英镑薪水
Bingham McCutchen 为刚获得律师执业资格的初级律 师开出100,000 英镑的年薪，令伦敦再次成为顶尖法律 人才向往的城市。在 Bingham 为新入职律师提供高薪 的同时，其它律所亦为有潜质的年轻律师提供优厚待 遇。美国瑞生为伦敦新入职律师提供96,000英镑的薪 水，Debevoise & Plimpton 的开价则达到94,250英镑。 实际上，在伦敦开展业务的诸多美国律所提供的薪水 均超出英国五大律师事务所，五大律师事务所为新入职 律师提供的薪水平均为65,000英镑。
Financial institutions foresee permanent economic shift from West to East A recent survey conducted by Norton Rose has shown an overwhelming view on a permanent shift in economic power from West to East. The firm surveyed 125 individuals in leading financial institutions between October and November 2009, finding: • 68% expected a permanent shift in economic power from West to East • 87% felt China would emerge stronger from the GFC • 81% saw signs that the economy is improving globally • 66% believed that a move to a global regulatory standard is necessary • 61% thought global regulation was unworkable • 62% agreed the GFC was caused by a failure to implement existing regulation • 81% said risk management has been given greater prominence in the last year
金融机构预计经济重心将由西方向东方转移 近日，诺顿罗氏律师事务所对125名来自不同金融机构的专 业代表进行了一项调查，就一系列有关有迹象显示经 济可 能出现复苏的问题询问他们的意见。调查结果显示，绝大 部分受访者均认为经济强国将由西方永久地转移至东方。 此次调查的结果显示： • 81%的受访者表示过去一年业界更为重视风险管理 • 68%的受访者预期经济强国将由西方永久转移至东方 • 87% 的受访者认为中国将摆脱全球金融危机困境，变 得更强大 • 81%的受访者表示有迹象显示全球经济正在改善 • 66%的受访者相信有需要推行一套全球性监管标准 • 61%的受访者认为全球性金融监管不可行 • 62%的受访者同意全球金融危机因没有落实执行现有 监管规例而造成
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I
n an indication that domestic firms are keen to increase their international capabilities, Han Kun has sent its partners to New York in search of recruits at one of the US's legal job fairs. The firm hopes to staff its two new branches – Shanghai and Shenzhen – with internationally qualified partners and associates to help build a global clientele. Fangda & Partners also frequents the same job fairs; the firm attends these fairs specifically to target Chinese students who have gone to universities in New York to study for their LLM. Every year, students are recruited to join the firm as associates from the US.
“Having international expertise has become increasingly important over the years, especially now if firms are trying to expand globally and attract more MNCs in China,” said Gordon Gao, partner at Fangda. “Being bilingual is very important. If the lawyer is a foreigner, he must have some Chinese culture and practice experience, and if he is Chinese he must be able to speak English. Potential candidates at these job fairs usually have that capability,” he added. Firms like Global and Shanghai Jade & Fountain have different approaches. Both firms prefer to select their international experts by word of mouth and by using their
国内律务所渴求国际人才
汉
坤律师事务所上月派遣合伙人赴纽约参与 美国法律毕业生求职招聘会，体现一部分 国内律作正在积极寻求国际人才，以提升国际服 务实力。汉坤希望为新近设立的上海和深圳分所 充实人才，借助拥有国际服务资格的合伙人和律 师建立全球客户基础。 方达律师事务所亦积极参与类似在美国举行的 招聘会；该所合伙人表示赴纽约大学学习法学专 业的中国留学生是该律所的重点招聘对象。每年 都有该校毕业生进入方达成为执业律师。 方达合伙人高国征表示：“近年来，拥有国际 服务能力对律所而言日益重要，方达目前正积极
开拓全球市场，希望吸引更多在中国开展业务的 跨国公司，因而对具备国际化背景的律师尤其重 视。双语能力十分重要。如果律师为外籍人士， 必须了解中国文化，具备在中国的实践经验，对 中国籍律师而言，则必须能熟练使用英语。此类 招聘会的求职者通常都具备上述能力。” 环球律师事务所和上海九州丰泽律师事务所则采 取一些不同的人才招聘方式。这两家律所更愿意通 过口碑选择国际业务专家，或借助有业务合作经验 的律师和同仁的推荐确定招聘人选。环球管理合伙 人刘劲容表示：“我们通常在有过合作经验的律师中 确定人选，因为通过合作，我们才能充分了解律师 ISSUE 7.2
NEWS | news >>
experience of working with potential candidates. “We usually pick from those with whom we have worked with before on deals, because we would then have solid knowledge of his experience, capabilities and strengths. Recommendations from friends and clients are also highly regarded,” said Liu Jinrong, managing partner at Global, who recently recruited three new partners and two teams of international lawyers from international firms to boost existing and upcoming offices.
“Having international expertise has become increasingly important over the years, especially now if firms are trying to expand globally and attract more MNCs in China” Jade & Fountain is also planning on a headcount increase to gear up its international capabilities. The firm has confirmed three new partners who will join the team in the next three months. “Our new partners have over a decade of experience in prominent US firms and were recommended to us by friends,” said Mark Ho, partner at Jade & Fountain. The firm plans to take its expansion one step at a time and has excluded the possibility of recruiting from job fairs at this time. “I think quite naturally our next office would be in Beijing but we would still stick to recommendations because I believe it promises proven capabilities,” added Ho. ALB
uk report Clyde & Co, Shadbolt join forces Eight partners have joined Clyde & Co as a merger with construction boutique Shadbolt is finalised, bringing the total number of global partners in the company to 173. Most of the moves have been from Shadbolt’s London office. Clyde & Co claim that the merger with Shadbolt will give them a contractual side to their existing construction practice, at the same time giving Shadbolt access to its offices across the Middle East, Asia, The Americas, Europe and Russia. Links struggles to hold onto young blood Linklaters’ retention rate for its current trainees has dropped to 76%, with 47 of the latest batch of 62 applicants kept on for newly-qualified roles. The retention rate was at its peak near the end of 2008 – 94% opted to stay, but then fell through 2009 to 82% last September. Mishcon de Reya targets fraud work with New York office London’s Mishcon de Reya has opened an office in New York with the former founding partner of Sheppard Mullin’s New York office, James McGuire. McGuire will be the office’s managing partner overseeing a team of 15. The firm’s New York posting will mark its first foray outside the UK and is aimed at providing “a Rolls-Royce litigation service,” said the firm’s managing
partner, Kevin Gold, targeting the growth in litigation work caused by the rise in fraud cases during the financial crisis. End of an era as IP specialist leaves CC Baker Botts has taken Clifford Chance’s last dedicated intellectual property litigator, with Peter Taylor becoming its eighth London partner late last year. Clifford Chance has only one full time IP partner, and a further blow to its IP practice came after Mars, one of CC’s biggest clients, opted to instruct Lovells last year. K&L Gates opens in Moscow After joining the billion-dollar club by breaking the US$1bn mark in global revenues (see US Report on pg 19), K&L Gates is pushing into foreign markets by opening in Moscow. The firm has also opened in Tokyo on the back of its successful international expansion strategy last year, which saw launches in Singapore and Dubai. The Moscow branch will be staffed by lawyers recruited from Haynes and Boone – including corporate partners Robert Langer and William Reichert who will lead a team of four other lawyers. “With our new Tokyo and Moscow offices, we will enter nations and parts of the world that are strategically important to K&L Gates’ global clientele,” said the firm’s chairman Peter Kalis.
的经验、能力和专长。好友和客户的推荐亦是我们 招募人才的重要渠道。”刘劲容近期聘请三位新合伙 人和两个来自跨国律所的国际律师团队，以期为现 有和即将成立的新办事处储备人才。 九州丰泽亦计划扩大规模，提升国际服务实力。 该律所于近期吸引三位合伙人加入。九州丰泽合伙 人何敏智表示：“新合伙人在著名美国律所拥有十余 年工作经验，全部是朋友和同事推荐的人才。”该所 计划逐步扩大规模，但目前尚无通过招聘会吸引人 才的意向。何敏智补充道：“我认为律所下一家办事 处会设在北京，我们主要依据推荐招聘人才，因为 我相信推荐是优秀能力的证明。” www.legalbusinessonline.com
ROUNDUP • Offshore firm Appleby is launching an office in Guernsey this year, staffed with four lawyers recruited from rival firm Ozannes – Barney Lee, Helen Crossley, Jeremy Le Tissier and David Clark. Gavin Ferguson is the Londonbased banking partner being transferred to head the new office • Pillsbury partner Denis Petkovic has left to head Withers’ international finance and projects practice. At Pillsbury he led the Europe and Middle East practices • Withers is in expansion mode after announcing its intention to develop an international referral network. The firm is looking to establish connections and contacts around the world to boost the amount of cross-border work it captures • Reed Smith’s former UK head Tim Foster has quit, leaving for Birmingham-based Hill Hofstetter, which was originally established by former Reed Smith lawyers in 2008. He will join the firm’s corporate practice • French firm Racine has recruited the head of IP at rival firm Vaughan Avocats, Isabelle Renard • A team of former lawyers from Clifford Chance – Avi Amsellem, Anne-Hortense Joulie, Fabrice Cacoub and Michael Levy – have formed a new firm, Parisian boutique Lawington
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NEWS | news >>
news in brief >> ALB China Law Awards 2010: new categories reflect market The ALB China Law Awards 2010 is introducing three new categories this year – Japanese Law Firm of the Year, Korean Law Firm of the Year and Singapore Law Firm of the Year – in recognition of the growing intra-Asia market. The growing size and frequency of deals being made between China and its Asian neighbours has triggered this need. “We can expect increased trade between Asian jurisdictions with the growth of Asia an as economic hub. The increase in the volume of transactions within Asia makes the new categories essential,” said Chan Hock Keng, head of China commercial & corporate practice at Singaporean firm WongPartnership. For seven years the ALB China Law Awards has recognised and rewarded the excellence of China’s leading law firms as well as top deals and dealmakers. Every year, the awards attract around 300 of China’s pre-eminent in-house and private-practice lawyers, as well as business leaders and investment bankers. For more information on sponsoring, nominating for or attending the awards, please visit www.albawards.com
2010年ALB法律大奖：全新奖项体现市场 发展趋势
2010年ALB法律大奖引入三个全新奖项，分别是年度最 佳日本律师事务所中国办事处、韩国律所中国办事处和 新加坡律所中国办事处，借此充分体现亚洲市场之间不 断增长的经济往来和联系。 中国与亚洲邻国之间的交易规模不断增长是催生新奖 项的主要原因。新加坡王律师事务所中国和公司业务部 主管 Chan Hock Keng 表示：“鉴于亚洲日益成长为经济 中心，我们预计，亚洲各国之间的交易将不断增长。亚 洲内部交易量增幅使新奖项的推出至关重要。” 七年来，ALB中国法律大奖旨在嘉奖中国领先律师事 务所以及重大交易和交易参与者。该奖项每年都吸引众 多中国著名企业公司法务部门和国内外律师事务所参与 评选角逐，同时还吸引企业管理者和投资银行家参与。 如需了解有关奖项提名、赞助或参与的更多资料，请浏 览www.albawards.com.
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M&A >>
Four PRC firms in M&A top ten C ommerce & Finance, DeHeng, Tian Yuan and King & Wood have ranked in the top ten of Mergermarket’s 2009 table of legal advisors to Greater China M&A. Commerce & Finance was the numberone ranked firm, outdoing Freshfields and Linklaters. DeHeng Law Offices came in fifth place, closely followed by Tian Yuan and King & Wood. The largest M&A deal of the year, according to Mergermarket, was China Yangtze Power’s US$15bn acquisition of the China Three Gorges Project power generators, advised on by DeHeng Law Offices and Tian Yuan. “The M&A market will definitely
continue to boom in 2010. We have our eyes on state-owned-enterprises this year and are confident that there will be more action from these major players,” said Liu Yan, a partner at Tian Yuan. “However, whether or not we will excel, fall behind or maintain our ranking in this league will depend largely on our competitors – and many other contributing factors. Until then, no one will know for sure,” she added. The total value of 2009 deals involving a bidder or target in Greater China rose 5% to US$421.4bn. And six out of the top ten deals were in the renewable energy and resources sectors. ALB
四家中国律所进入并购排行前十名
在
Mergermarket 2009年大中华地区并购业 务法律顾问机构前十名榜单上，通商、德 恒、天元和金杜占据四席。通商成为排名第一的 律所，领先富而德和年利达。德恒排名第五，天 元和金杜紧随其后。 据 Mergermarket 统计，今年最大规模的并购
交易当属中国长江电力斥资150亿美元收购中国 三峡总公司发电机组的项目，德恒和天元为该项 目提供法律顾问服务。 天元合伙人刘艳表示：“在2010年，并购市场无 疑会继续繁荣发展。今年我们重点把握国有企业项 目，天元坚信，这些大型企业将有更多动作。”她补
Guangzhou >>
Lifang expands Guangzhou office L ifang & Partners’ Guangzhou office has merged with local IP specialist firm Liu and Partners. Roy Liu, managing partner of the sixlawyer firm, will head Lifang’s newly expanded Guangzhou office. Lifang, a Beijing-based firm primarily focusing on IP practice, first established its Guangzhou presence in December 2007 with the signing of the city’s leading IP practitioner Deng Yao, previously a partner of Guangzhou Hai Ji Ming and the former deputy-director of the science and technology intellectual property centre of Guangdong province. The latest expansion of its Guangzhou capabilities is the firm’s response to the continuous surge in demand for IP legal services in the Pearl River Delta region. The region has been one of the country’s leading provinces by the total number of patent and trademark filings since 2006. In October last year, Lifang also expanded its IP practice in its head office
by recruiting a 30-member IP team, including five partners. Part of the team joined Lifang from DeHeng’s IP division. Guangzhou-based Liu and Partners, established in 1994, has enjoyed mandates from major clients like Apple, Microsoft, Midea and Nike. ALB ISSUE 7.2
NEWS | news >>
►► League Table of Legal Advisors to Greater China M&A by value (Jan 01, 2009–Dec 31, 2009) Rank
House
1
us report
Value (USDm)
Deal Count
Commerce & Finance
30,800
15
2
Freshfields Bruckhaus Deringer
23,302
29
3
Linklaters
22,806
22
4
Baker & McKenzie
21,816
25
5
DeHeng Law Offices
19,553
9
6
Tian Yuan
17,503
8
7
King & Wood
15,002
16
8
Clifford Chance
14,632
10
9
Simpson Thacher & Bartlett
14,528
7
10
Allens Arthur Robinson
14,417
3
充道：“至于我们的排名将会上升、下降还是保持不 变，主要由竞争对手和其它相关因素决定。不到最 后一刻，任何人都无法准确判断未来的情况。” 2009年，大中华地区的并购交易总额上升5％， 达到4214亿美元。在规模排名前十的交易中，有 六宗交易涉及可再生能源和资源领域。
with local merger
K&L Gates trumps Pillsbury and Paul Weiss in revenue results Pillsbury Winthrop, Paul Weiss and K&L Gates have revealed their revenue results for 2009. Pillsbury and Paul Weiss reported revenue decline. Pillsbury’s revenues fell by 7.5%, from 2008’s US$576m to 2009’s US$533m. The firm’s PEP also fell, by 2.6% to US$950,000, but it managed to keep revenues-per-lawyer flat at US$850,000. Paul Weiss also revealed its provisional revenues, with mixed results. It is understood that while the firm’s 2009 revenues fell by 2% to US$678m, PEP was slightly up, from US$2.65m to US$$2.69m. K&L Gates bucked the trend by breaking the US$1bn revenue barrier, for the first time, by US$300,000 – a 7.8% increase on the firm’s 2008 figure of US$959m. PEP also grew slightly, from US$855,000 to US$860,000. Winston & Strawn launches alternative fees Many firms have been considering alternative fee arrangements (AFAs), but Winston & Strawn has actually formed a new software program to encourage its lawyers to offer more flexible fee options to clients. The program is modelled on fee services the firm has offered in the last three years. Lawyers will be able to find out what fees to offer based on those past billing arrangements, measured on the types of work and services provided. Since launching the program the proportion of clients opting for AFAs has grown by 15%, according to the firm. “I expect [that] to continue and would
be surprised if we don’t get up to around 40%,” said partner Scott Farrell. New site rates firms on value The world’s largest organisation of in-house lawyers, the Association of Corporate Counsel, has launched a new law firm ratings service, based on a quality valuation of their service and fees. The program, “ACC Value Challenge”, is based on evaluations submitted by ACC’s members. Members rate firms using a five-point scale – one for ‘poor’ through to five for ‘excellent’ – on criteria such as the firm’s legal expertise, communication skills, cost/ budgeting skills and efficiency. The aim of the program, according to ACC president Fred Krebs, is to generate discussion about firms’ business models. Despite some criticism he says the program will simply formalise an evaluation process that in-house lawyers already conduct among themselves. Mayer Brown partner on fraud charges Former Mayer Brown partner Joseph Collins was recently sentenced to seven years in jail for fraud relating to the collapsed brokerage firm, Refco. Collins was the head of Mayer Brown’s derivatives group before he resigned last year and was convicted of conspiracy to commit securities fraud in a US court. Although the court heard that Collins did not personally profit from the US$2.4bn securities fraud, the judge said his actions were brought about by being too loyal. Collins is appealing his conviction.
立方通过本地合并扩大 广州分所
立
方律师事务所广州分所与当地知识产权领 域专业律所大松律师事务所合并。大松拥 有六位律师，主管合伙人刘延喜将担任立方新广 州分所主管。 立方是总部位于北京的律师事务所，重点从事 知识产权领域的法律服务，2007年12月在广州成 立分所，吸引广州著名知识产权律师邓尧加入， 邓尧曾担任广州海际明律师事务所合伙人和广东 省科技知识产权中心副主任。 鉴于珠三角地区知识产权法律服务需求持续增 长，立方决定扩大广州分所的规模。自2006年 以来，珠三角的专利和商标申请总数一直在全国 保持领先。 去年10月，立方曾扩大总部知识产权业务团队 的规模，吸引30位律师组成的知识产权团队加 入，其中包括五位合伙人。部分团队成员来自德 恒的知识产权业务部。 总部位于广州的大松律师事务所成立于1994 年，曾为多家大企业提供法律服务，包括苹果、 微软、美的和耐克。
www.legalbusinessonline.com
ROUNDUP
• Latham & Watkins has become one of the first firms to reverse salary freezes that were implemented by law firms worldwide in response to the financial crisis. The firm commenced its salary freeze in December 2008, among a number of other cost-cutting exercises including job cuts • Latham & Watkins lost a well-known M&A partner to Greenberg Traurig. David Schwartzbaum, who headed up billion-dollar deals for the firm like the Gilead-CV Therapeutics and the Texas Pacific-Axcan Pharma acquisitions, has joined Greenberg’s New York office • Arnold & Porter has scored a major coup, bringing in a four-lawyer team from Milbank Tweed to its London IP practice. Former Milbank partner David Perkins brought three lawyers with him to the firm, leaving only one partner at Milbank’s London litigation practice • Arnold & Porter is also celebrating alongside Dewey & LeBoeuf, Gibson Dunn & Crutcher and Clifford Chance, after the board of Cadbury approved its proposed takeover by Kraft. The firms were involved with the regulatory side as well as the commercial and securitisation legal issues. The US$19bn worldwide deal also reeled in Freehills, Shearman & Sterling, Slaughter and May, and Cleary Gottlieb
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NEWS | news >>
Update >>
in-house >>
International Tax
Huafa’s legal director to address companies’ growing legal needs
European governments agree data sharing but remain deadlocked over EU Savings Directive
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U finance ministers have agreed to mandate the “spontaneous” exchange of banking information between member states. The provisions for automatic data exchange will be introduced through amendment to EU Directive 76/308/EEC on mutual assistance in recovery of taxes. These are mainly aimed at stopping fraudsters organising insolvencies in member states where they have debts. Existing international provisions to fight this process have only allowed a small proportion of debts to be recovered, it said. The amended Directive will be adopted at a forthcoming Ecofin meeting, once the European Parliament has approved it. But the guarded communique issued after Ecofin’s meeting on 19 January indicated that member states have not yet agreed on one of the most controversial topics under negotiation: the extension of the EC Savings directive 2003/48/EC to cover trusts and other financial vehicles. Nor was any firm announcement made or on the planned anti-fraud agreements with Liechtenstein, Andorra, Monaco, San Marino, and Switzerland. Media reports after the meeting suggested that Luxembourg had somewhat softened its opposition to fullscale tax cooperation and that both Luxembourg and Austria are trying to retain their exemption from the existing Savings Directive’s information disclosure provisions.
Obama get tough on US tax cheats President Barack Obama is directing the US Office of Management and Budget and other federal agencies to keep contractors who are delinquent on their taxes from winning new contracts with the US government. The president intends to sign a directive on the issue, a move the White House says is part of a broader effort to cut down on waste and ensure that tax cheats aren’t boosting their bottom lines at taxpayers’ expense. “All across this country, there are people who meet their obligations each and every day. You do your jobs. You support your families. You pay the taxes you owe—because it’s a fundamental responsibility of citizenship,” Mr. Obama said, according to prepared text released by the White House. “And yet, somehow, it’s become standard practice in Washington to give contracts to companies that don’t pay their taxes.” Mr. Obama also directed the Internal Revenue Service to review the overall accuracy of firms’ claims about tax delinquency “to be sure that when a company says it’s paying taxes, it’s not lying.” Mr. Obama asked for Congress’s help in the effort, urging lawmakers to pass legislation that lets the IRS share information about tax delinquency with contracting officials. By Debbie Annells, managing director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong
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Fujian >>
Zhongyin opens second
A
fter its recent launch in Xiamen, Zhongyin has opened a second office to serve its Taiwanese clients, in Fuzhou (Fuijian province). Fujian has flourished for many years on Taiwanese investment, and Fuzhou and Xiamen are the only cities in the PRC where Taiwan law firms are permitted to set up branch offices. Zhongyin’s added focus on Fujian is due to the firm’s growing Taiwanese clientele, which it intends to service with a dedicated division.
中银在福建成立第二家分所
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.
omestically listed companies increasingly need to have a dedicated general counsel or legal director, as a result of the growing sophistication of regulatory and compliance frameworks and the sheer amount of transactions being done. Shanghai listed and Zhuhai-headquartered Huafa Industrial is the latest to recognise this and has hired its first legal director from Zhuhai-based Guangdong Band law firm. Former managing partner Yu Shuling left the firm in late January to take up her new role as the legal director of Huafa Industrial, a company principally engaged in the development and operation of properties. Yu and her team had served the company for nine years as a long-standing external counsel. “I’ve been working with Huafa for many years, and I know its business very well. As the company has been expanding and investing significantly across the country, it has clearly seen the urgency of having a senior legal director who can oversee its in-house legal team, centralise the management of risks and legal affairs, and devise in close cooperation with the executive directors the legal strategy of the company,” said Yu. In recent years, Huafa has completed a growing number of M&A and capital markets transactions. 2009 highlights include the issuing of RMB1.8m in corporate bonds; buying land in Nanning for RMB2.5bn; acquiring 80% of the shares in Dalian Huateng Real Estate Development; and taking over Zhuhai Huaming Technology Development. According to its 2009 annual financial report, total fees paid for professional and advisory services in 2008 increased by 144% to RMB17.4m, and spending on external legal fees in 2008 increased by RMB850,000. Yu identified the trend towards hiring senior legal directors and general counsel in listed companies. “All the listed companies have established in-house legal departments to comply with CRSC’s requirement. Many of them are paying more attention to legal and compliance issues. For companies that are expanding very fast and
Debbie Annells
继
近期在厦门成立分所后，中银又在福州成立第二家分所，旨在发展更 多台湾客户和业务。 多年来，台商的投资令福建经济日趋繁荣，同时，仅有福州和厦门目前允 许台湾律所成立分支机构。鉴于律所的台湾客户不断增长，中银决定进一步 ISSUE 7.2
NEWS | news >>
Update >> are investing in a wide range of sectors, appointing a legal director and general counsel is sensible.” Yu is working with Huafa’s existing five-person in-house team and said further expansion depends on the upcoming board meeting which will formulate plans for the company in the year ahead. Guangdong Band, a 20-lawyer firm, named partner Chen Ruishan as the new managing partner. ALB
珠海华发新法务总监强调上市公司法律 需求不断增加
珠
海华发实业，一家在上海证券交易所上市、主要从事地产开发经营的 公司，近日宣布由于公司业务发展需要，已设立法律事务总监职位， 分管法律事务，享受公司副总裁待遇，并聘任原广东秉德律师事务所主任合 伙人余淑玲女士为其法律事务总监。 在广东秉德律师事务所执业期间，余淑玲及其带领的律师团队已经作为 常年法律顾问为珠海华发实业提供法律服务长达九年。她对珠海华发实业 的法律事务和发展策略有深入了解。她表示：“由于华发近年来对外省的投 资项目越来越多，公司管理层觉得很有必要设立法律总监职位，统一管理 全盘法律事务和法律风险。” 近年来，华发主导的并购交易数量不断上升，并且在2009年底发行了总额 达人民币18亿元的债券。由于交易和投资日益活跃，华发对法律服务的需求 也体现在其不断赠加的法律顾问费用。据其2009年的财务报告，华发在2008 年的中介机构费为1,744 万元，比2007 年的714 万元增加1,030 万元。其中 法律顾问费增加85万元，财务顾问费增加611 万元。 余淑玲还表示，证监会规定上市公司必须设立法务部，且大部分上市公司 的法律意识也日益增强。随着一些公司对外投资增大，产业结构更加复杂， 他们越来越需要统一的法律事务管理。更多上市公司聘用法律事务总监将是 未来发展的大体趋势。 目前，华发的内部法务部门共有五位员工，余女士指出，是否会扩大团队 规模还将取决于公司对来年发展的总体规划如何。
branch in Fujian “Taiwanese clients are currently facing a very competitive business environment. There is an increasing need for them to retain larger firms for their legal needs,” said Steven Hsu, senior consultant and director of marketing. Hsu left Baker & McKenzie’s Taipei practice to join Zhongyin in October last year, and has 13 years experience practising law in Taiwan. His expertise is a bonus for the firm to attract more Taiwanese clients and fuel its expansion. 注重福建市场，成立专门的分支机构为台湾客户服务。 高级顾问律师兼市场总监许进胜表示：“台湾客户目前面临竞争激烈的业务 环境。台湾客户的需求不断增加，希望规模较大的律所能继续满足其法律需 求。”去年10月，许进胜离开贝克•麦坚时台北办事处加盟中银，他在台湾法 律界拥有13年工作经验。他的专业和业务经验能为中银带来更多台湾客户， 为律所业务发展提供有力支持。 www.legalbusinessonline.com
Singapore 新交所出台两指南 增强投资者投资知识
2
009年12月，为增强投资者投资证券市场知识，了解投资对 象更多的基本信息，新加坡证券交易所（“新交所”）出台两 份指南，分别是“投资者阅读年度报告指南” 和“投资者准备 年度股东大会指南”。 鉴于年度报告通常是公司唯一公开发布的文件，他为投资者概 括的描述公司一年所取得的进展，包括审计后的财务报表，管理层 对公司业务的论述及公司主席的简报。投资者阅读年度报告指南出 台的主要目的是为方便投资者更好的利用上市公司所披露的年度报 告，关注重要事项和提出的相关问题，以促进投资者对公司的整体 概况加以了解。在本指南中，新交所提醒投资者在阅读年度财务报 告时注意公司的管理层是否专注于核心业务，是否前后一致，看公 司目前披露的风险是否与之前的有差别。针对公司的财务报表，投 资者要关注 1. 净盈利是正数，它在上升还是在下降; 2. 营业额是在 增长还是在下滑。3. 营运现金流经营运资金调整后，其现金流为正 值还是负值; 4. 净负债额是在上升还是在下降; 5. 股息是在增加还是 在减少 (按净盈利的百分比计算) 等问题。 投资者准备年度股东大会指南旨在帮助投资者关注重大事项，并 在年度股东大会上提出相关的问题。在本指南中，运用了四个不同 的章节列出一些注意事项以帮助投资者更好的准备年度股东大会， 分别是：1. 年度股东大会的常规决议 — 委任董事、派发股息以及 新股发行等。2. 上一阶段的公司业绩 — 评估和分析公司在过去一 年内的业绩，主要参考投资者阅读年度报告指南。3. 公司概况、最 新经营状况 — 对公司业务进展进行大致了解。4. 展望 — 对下一阶 段可能或预计开展的业务进行解释。新交所同时提醒投资者，对于 很多股东而言，这将是他们就影响他们投资的问题向管理层和董事 会直接问询的唯一机会!请投资者谨记年度股东大会是为股东的利 益而召开的，请尽量出席! 上述两个指南的出台，是新交所保护广大小股东利益的又一新 举措！ 陶丽 企業事務部法律顧問 Ph: (86) 13911000063 Fax: (65) 6534-0833 E-mail: taoli@loopartners.com.sg
陶丽
賈文怡 企業融资部法律顧問 Ph: (65) 6322-2230 Fax: (65) 6534-0833 E-mail: joycejia@loopartners.com.sg 俊昭法律事務所 88 Amoy Street, Level Three, Singapore 069907 賈文怡
21
NEWS | news >>
news in brief >> 10 lawyers to participate in Australia placement program Ten lawyers selected from various government agencies and private law firms across the nation will travel to Australia soon to gain first-hand knowledge of the country’s legal workings. They will participate in the 2010 Australia-China Legal Profession Development program (ACLPDP) – a highly regarded annual program that commenced in 2007 and allows 8-10 Chinese lawyers to gain direct experience of the Australian legal profession through a three-month placement. The ten lawyers are able to request areas that they want to work in and are introduced to Australian courts and bodies such as ASIC and the Trade Practices Commission. They then go on a placement for three months, either with a government agency or a private practice. This year’s participants will arrive in Australia at the end of February to commence the initial study and training component of the program, prior to the 12–14 week placement component which is scheduled to commence in March. Participants are selected on the basis of experience in nominated areas ranging from the regulation of the legal profession and practice management to energy & resources and dispute resolution. The program is an initiative of the International Legal Services Advisory Council and is implemented by the Attorney-General’s Department and the Law Council of Australia, in conjunction with the Ministry of Justice and the All China Lawyers Association. The Australian Leadership Awards Fellowships conducted by AusAID currently funds the program. All lawyers are provided with accommodation and a living allowance. To find out more or apply for next year’s program, visit http://www.ilsac.gov.au/
10名律师赴澳参加培训和考察项目
10名来自全国各地的律师即将启程赴澳大利亚，参加 2010年中澳法律职业发展项目。他们将在澳大利亚展开 为期4个半月的考察和培训，学习当地法律体系，并在 澳大利亚商务律师事务所、律师协会、政府部门或国际 公司法务部学习研究。 根据中国司法部、中华全国律师协会与澳大利亚司法 部、澳大利亚律师协会、澳大利亚国际法律事务咨询委 员会共同签署的中澳法律职业发展计划谅解备忘录，从 2007年开始展开每年一度的中澳法律职业发展项目。每 年参加的人数为8到10位左右，涉及境外费用和国际旅 费由澳方提供。 学习研究的法律领域包括：律师 职业规范、法律援 助、公司治理、矿产能源业、竞争政策、银行和金融 业、纠纷解决办法、破产、房地产。 项目的候选者由各省级司法厅（局）或律师协会向中 华全国律师协会推荐。候选者经全国律协审核后，遴选 出若干名优秀者报澳方。澳方将确定面试者名单。面试 后产生的入 选者将于2010年2月24日赴澳。 如需了解更多资料，或申请明年的计划，请浏览 http:// www.ilsac.gov.au/
►► Key points:
• The Australia-China Legal Profession Development program (ACLPDP) commenced in 2007 • Program introduces Chinese lawyers to Australian legal community • Participants are placed with Australian law firms for three months
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Beijing >>
Beijing plays host to first Iberian law firm
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eading Spanish firm Uría Menéndez has become the first Iberian firm to open in Beijing. The firm has recently opened a representative office, which is its 16th location worldwide and first in Asia, in the World Trade Center. The office is next to the Beijing offices of two of its “best friends”: Slaughter and May from the UK, and De Brauw Blackstone Westbroek from the Netherlands. The new office offers an ideal base for the firm to service its clients and help them manage their investments directly in China. It also serves as the first point of contact for Chinese clients seeking advice on their investments in Spain, Portugal and, especially, Latin America, where Uría Menéndez has five offices and extensive experience advising foreign investors.
首家伊比利亚地区律所 进驻北京
西
班牙领先律师事务所 Uría Menéndez 成为首 家进驻北京的伊比利亚地区律所。该律所近 期在北京国贸中心设立代表处，是全球第16个分 支机构，是亚洲的首个分支机构。该律所的代表 处临近两个“业务挚友”的北京办事处：英国的司力 达律师事务所和荷兰的黑石律师事务所。 新代表处为该律所提供绝佳的业务平台，从而 为客户提供更好的服务，在中国直接帮助客户 管理投资。对于有意赴西班牙、葡萄牙以及拉 美地区投资的中国客户而言，该代表处亦是绝 佳的接洽点，Uría Menéndez 在上述地区拥有五 家办事处，在为外国投资人提供法律顾问方面 经验丰富。 律所北京代表处主管 Juan Martín Perrotto 去
Speaking to ALB last year, Juan Martín Perrotto, head of the firm’s Beijing office, said that the firm had chosen Beijing because of its role as the political and business decisionmaking centre for foreign investors – a major part of Uría Menéndez’s practice in China. “We feel that Shanghai – home of clients’ operative divisions – is a proper location for those willing to provide operational legal support on an ongoing basis. Meanwhile, Beijing, where government and business headquarters are located, is a more suitable location when it comes to inbound and outbound investment work,” he said. Three other Spanish firms have also established a representative office in China – all in Shanghai. ALB ►► Spanish firms in China Firm
Location
Cuatrecasas
Shanghai
Garrigues
Shanghai
Roca Junyent
Shanghai
Uría Menéndez
Beijing
年接受《亚洲法律杂志》采访时表示，之所以选 择在北京成立代表处，主要看重北京是政治中心 和外国投资人的决策中心，为外国投资人服务是 Uría Menéndez 中国业务的重要组成部分。他表 示：“上海是客户分支业务的基地，对于希望持 续提供经营方面法律支持的律所而言，上海是理 想的业务所在地。与此同时，北京是政府和企业 总部所在地，在境内外投资业务方面更具地理优 势。” 另有三家西班牙律师事务所在中国成立代 表处，全部位于上海。 ISSUE 7.2
NEWS | news >>
china >>
Azmi blazes Malaysia-China trail
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zmi & Associates has ventured into China via a strategic alliance with Beijing-headquartered Zhongyin. The alliance, a non-exclusive agreement initiated by Azmi, is part of the Malaysian firm’s response to the influx of Sino-Malaysian transactions. Earlier this year, Azmi launched a Chineselanguage website and its China Desk service. The firm also created a team of lawyers with Chinese language capabilities, including Cantonese and Hokkien. Azmi sees its alliance with Zhongyin as a propellant for its Chinese ambitions. Having already spoken to a number of other firms in Beijing, the firm plans to entrench its market presence by forming more alliances with top-tier Chinese firms and setting up an office in either Beijing or Shanghai in the near future. Azmi advises primarily on project finance, M&A, large-scale infrastructure projects and IPO matters. “I think we are on a level playing field with Zhongyin. We see a lot of synergy between us because we share the same corporate culture, work philosophy and vision. We also serve Malaysian government-linked investment companies and Zhongyin serves Jeffery Tan state-owned enterprises in China,” said Jeffrey Azmi & Associates Tan, partner and head of Chinadesk at Azmi. The Malaysian government has recently entered into agreements with China encouraging infrastructure, mining and technology projects. Azmi, which represented the Malaysian government on such agreements, sees the experience as a platform to better understand Chinese businesses. Monitoring the market trends, Tan foresees that more Chinese companies will be investing into and launching their IPOs in Malaysia and likewise, Malaysian companies will also increasingly venture into China given its market size and cost efficiencies. On top of its existing and upcoming alliances with Chinese firms, Azmi is a member of TerraLex, enjoying formal relationships with TerraLex members like AllBright and Hylands. ALB
阿兹米推进中马律师业合作
阿
兹米律师事务所与总部位于北京的中银律师事务所建立战略联盟，以 开辟中国市场。阿兹米发起建立该联盟，与中银签订非排他合作协 议，是马来西亚律师事务所应对中马跨径交易增长的努力之一。今年初， 阿兹米推出中文网站和中国客户服务部。阿兹米还建立具备中文能力的律 师团队，包括粤语和闽南语。 阿兹米已经与北京的其它律所沟通，计划与更多一流中国律所建立联合， 并于近期在北京或上海建立办事处，以进一步开拓中国市场。 阿兹米的主要业务领域包括项目融资、并购、大规模基础设施项目和 IPO 业务。阿兹米中国业务主管兼合伙人 Jeffrey Tan 表示：“我认为，阿兹米与中 银已经建立良好的合作关系。双方有诸多共同点，我们有相同的公司文化、 工作理念和远景目标。我们同样为马来西亚政府背景的投资公司服务，中银 则为中国的国有企业提供服务。” 马来西亚政府近期与中国签订协议，鼓励在基础设施、矿业和科技项目上 的合作。阿兹米曾作为马来西亚政府的法律顾问参与协议磋商工作，这段经 历可作为有益的平台，帮助阿兹米更好地了解中国企业。在市场发展趋势方 面，Tan 预计将有更多中国公司赴马来西亚投资或启动 IPO，鉴于中国拥有 巨大的市场规模和成本效益，马来西亚亦会加大对中国的投资。 除现有和将来的合作关系外，阿兹米还是 TerraLex
www.legalbusinessonline.com
Beijing 政府信息公开存在的问题与对策
本
月，前中国足协副主席南勇被刑事拘留，因其随身携 带600万元的银行卡，其中300多万元来源不明。这暴 露出我国政府信息公开的缺失：公众只能等到刑事侦 查阶段才能获悉官员的财产状况，官员进行秘密的权 钱交易直到最后一刻“见光死”。《政府信息公开条例》（以下简称 《条例》）实施一年，不过执行不力的问题已经凸现：
1、准备不足
面对如潮的申请，行政机关表现出：对《条例》语焉不详之处难以 判定，不愿贸然公开；对行政行为的合法性没有确信，不敢公开； 缺少经验与专业人士，无力公开。
2、制度缺陷
政府信息范围狭窄。《条例》中政府信息不包括其他国家机关的 信息，如财政预、决算，也不包括官员家庭财产信息。在国外， 官员家庭财产申报制度从一开始就是政府信息公开的一部分。公众 不仅应当了解国家机关在做什么，还应当知道钱怎么花，是否存在 假公济私。 审查申请条件严格且不予公开范围不明确。实践中对申请的审查 比《条例》原意狭窄，使申请在实体审查之前即被否决。涉及不予 公开的属不确定法律概念，如商业秘密、个人隐私、国家安全、公 共安全、经济安全和社会稳定。这不仅使行政机关无所适从，更易 导致其滥用自由裁量权。 法院审理保守。由于相关规定不明确，现实又缺乏可行的审查 标准，导致法院的行政救济功能难以发挥。在起诉不履行信息公 开义务的诉讼中，法院会在被告未充分举证前就直接驳回原告的 诉讼请求。
针对以上问题，提出如下建议：
1、完善制度。有必要将《条例》上升到国家立法的层面，扩大调整 范围，明确所有国家机关的公开义务；确立公职人员的财产申报义 务；确立“公开为原则，不公开为例外”的基本原则，取消对申请条 件的限制，明确不予公开的具体范围；确立信息公开的各项责任和 追究制度；确立信息公开的保障和救济制度，尽快出台司法解释， 明确信息公开合法性的判定标准。 2、充分准备。有必要让行政机关特别是负责人 认识到信息公开的重要性和必要性，在工作的各 个环节给予重视。需要配备专业人员从事该项工 作，落实绩效评估、奖惩机制。 作者信息： 吕立秋律师 邮箱：lvq@guantao.com Tel: 8610 66578066 Fax: 8610 66578016 地址：北京市西城区金融街28号盈泰中心2号楼17层
吕立秋
23
NEWS | news >>
news in brief >>
in-house >>
Help at hand on US matters for in-house counsel
J
Rio Tinto legal chief heads for outsourcing firm Rio Tinto’s managing attorney Leah Cooper is moving from the mining giant to take up a position with the company’s outsourcing firm, CPA Global. Last year, Cooper made headlines after deciding to outsource Rio Tinto’s low-end legal work to a team of Indian lawyers based in CPA Global’s Delhi office. The move cut the company’s legal costs by an estimated 20%, and also helped boost the image of the global outsourcing industry. Cooper’s endorsement of the outsourcing industry came in the same year that the Association of Corporate Counsel, an organisation of in-house counsel of which Cooper is a member, sounded another warning bell with its ACC Value Index, ranking firms by the cost and quality of legal services provided. The index was received with uncertainty from law firms who are increasingly facing pressure from clients for added value. Cooper will manage CPA’s legal outsourcing portfolio. The company expects to utilise her experience as a general counsel to work with other legal departments in their push to cut legal costs. That may well herald another market development in the legal services industry, by encouraging more legal departments to request more value from external counsel. “Joining CPA Global is an opportunity to continue to revolutionise the increasingly competitive legal services market,” said Cooper.
力拓首席法律顾问转投外包律师事务所
力拓首席法律顾问 Leah Cooper 决定离开矿业巨头，转 投该公司的外包律所 CPA Global 任职。去年，Cooper 决定将力拓的低端法律业务外包给 CPA Global 新德里 办事处负责，该业务团队主要由印度律师组成，备受媒 体关注，该举措可将公司的法律成本降低约20％，亦有 助于提升全球外包行业的形象。 在 Cooper 决定使用外包服务的同年，Cooper亦是企业 内部法律顾问组织全球企业法律顾问协会利用 ACC 价值 指数发出警告的成员之一，该指数主要依据法律服务的 成本和质量确定律所排名。面临客户要求提供增值服务 压力的律所则并不完全认可该指数的结论。 Cooper 将负责管理 CPA 的法律外包业务组合。该律 所将充分利用她担任总法律顾问的经验，从而与其它法 律部门充分配合，削减法律服务的成本。通过鼓励更多 企业的法律部要求外部顾问律师提供更高价值，可能推 动法律服务行业又一市场趋势的发展。Cooper 表示：“ 加入CPA Global 提供良好机遇，帮助我为竞争日趋激 烈的法律服务市场带来革命性变化。”
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umping the divide from private practice to in-house counsel can be daunting, for even the most experienced practitioner. In-house counsel, after all, may have to cope with anything from a complex litigation to extensive due diligence on a crossborder M&A – all without the advice of those expert peers who used to be just down the hall. Many of these matters will involve what is still the world’s largest economy, the US. Enter the Association of Corporate Counsel (ACC), the world’s largest community of in-house counsel. “It was very simple. In-house lawyers wanted a home,” says Frederick Krebs, president of the ACC. “We were founded because in-house lawyers wanted to be able to come together to have peer-to-peer conversations and a network of in-house lawyers.” Since its establishment in 1982 as the American Association of Corporate Counsel, the ACC has grown internationally and now has a membership of 25,000 in-house
“We were founded because in-house lawyers wanted to be able to come together to have peer-to-peer conversations and a network of in-house lawyers” Frederick Krebs, ACC counsels in over 70 countries. Although there are no formal ACC chapters located in Asia, any in-house counsel from anywhere in the world may seek membership and benefit from ACC’s resources. One of the key benefits of membership is the Fred Krebs ability to access a ACC President network of like-minded peers. For example, in-house counsel in Asia looking for advice on how best to go about conducting a matter in the US can log into an online network and reach out for an on-the-ground perspective on the best firms to use for matters.
►► Do you qualify for ACC membership? Association of Corporate Counsel membership is open only to attorneys who practice law as employees of private sector organisations and who do not hold themselves out to the public for the practice of law. Those not eligible for membership: • Corporate employees whose responsibilities are primarily other than addressing legal issues. • Individuals whose responsibility may include selling or providing services to individuals or organisations who are not their employer. This would include individuals who work for companies that provide legal services – such as headhunters, contract attorneys, law firms and temporary agencies. • Individuals whose responsibilities include sales, marketing and business development in the legal market, are also included in the above category. • Organisations applying for large law membership or the corporate legal resource package that have regulatory oversight. • For further information about membership see www.acc.com or contact Liang Ge at ge@acc.com.
It’s not just about the online network, though. Another way the ACC adds value is by providing legal resources such as surveys, checklists and articles. “We have resources that we have commissioned, created or collected from our members,” says Krebs. For example, members are able to access basic forms which can be helpful in building up precedent documents for in-house legal departments. The ACC also produces how-to guides. “An InfoPAK is a detailed information resource that a person can use. For example, if you are a new in-house lawyer, we have an InfoPAK about how to start up a law department if you are the first person in – it gives you resources on how to do that,” explains Krebs. As more Chinese and other Asian corporations establish their presence in the US, their in-house counsel will be looking to develop their knowledge of the US legal services market. The ACC offers those lawyers access to a pool of specialised resources. “We say that we are an organisation that is by –and for – in-house counsel,” says Krebs. ALB ISSUE 7.2
Firm Profile
WongPartnership LLP
Pre-Action Discovery for Arbitration
T
he Singapore Court of Appeal recently had to consider an application to stay pre-action discovery proceedings where both parties were bound by an arbitration agreement. While the Court decided that the application for pre-action discovery could go ahead, it also laid out the parameters for such an application.
Facts The case was Navigator Investment Services Ltd v Acclaim Insurance Brokers Pte Ltd [2009] SGCA 45 (29 September 2009). The applicant, Navigator Investment Services Ltd (“Navigator”), had entered into a Distributorship Agreement with the respondent, Acclaim Insurance Brokers Pte Ltd (“Acclaim”). Acclaim later suspected that its employee, Edward Wong (“Wong”), and his team of financial adviser representatives had, with the collusion of Navigator, wrongfully transferred funds out of client accounts held with Acclaim. It sought to determine whether its suspicions were founded.
The Application for Pre-Action Discovery and Pre-Action Interrogatories When its request for information from Navigator was refused, it took out proceedings for pre-action discovery and pre-action interrogatories. The grounds for the application were its need to determine whether it had claims against Acclaim, Wong, and the financial adviser representatives of Wong’s team. Acclaim countered with an application to stay proceedings on the basis that its Distributorship Agreement with Acclaim provided for arbitration, and accordingly, the matter should be dealt with by an arbitral tribunal. The Court of Appeal refused to grant a stay of proceedings.
Application for Stay Premature as Claims Not Yet Crystallised It noted that the application for a stay had been taken out under section 6 of the International Arbitration Act (“IAA”) which provided that such an application could be made “at any time after appearance”. While the term “appearance” should not be confined to the narrow circumstance where a memorandum of appearance had actually be filed, it would require at a minimum that a substantive claim had crystallized which the defendant intended to contest. An www.legalbusinessonline.com
application for pre-action discovery and/or pre-action interrogatories would, by its very nature, fall outside this particular cut-off point and hence section 6 of the IAA could not be relied on to stay such an application.
Court Will Only Order Pre-Action Discovery/Interrogatories Sparingly Substantively, however, the Court had to consider whether allowing such an application should be allowed to go ahead. It noted that there was a difference between pre-action discovery/interrogatories and prearbitration discovery/interrogatories. There was a strong argument that the Court had no power to make orders in relation to prearbitration discovery/interrogatories. However, where the application related to pre-action discovery/interrogatories, the Court not only had the power to determine the question, there was no a priori reason why it should not exercise that power. It was only that such a power would in such circumstances be exercised sparingly. Furthermore, it was not the case that the exercise of such a power was contrary to its policy in favour of arbitration. In fact, where exercised in a proper case, it would actually be in favour of it as it would allow a party to better determine whether its claim was one that fell under the arbitration agreement or not. The Court then noted that it would be much less likely to grant any such application where the parties to the arbitration agreement and the parties to the court proceedings concerned, as well as the issues in dispute in both circumstances, are one and the same. However, in this case, the application also related to possible claims against third parties who were not bound by the Distribution Agreement or the arbitration clause. It accordingly allowed the application.
agreed that the IAA applied to the arbitration as they must be taken to have agreed to the legal substance contained in the Rules.
Conclusion It is important to note that the Court made it clear that it would not allow applications for pre-action discovery/interrogatories to delay or stifle the proper conduct of arbitration proceedings. Specifically, it stated: “…the courts will constantly bear in mind the need to both facilitate and promote arbitration wherever possible between commercial parties… Any attempt to circumvent this ideal via court procedures will, ex hypothesi, be an abuse of the process of the court and will (as already mentioned) not be tolerated by the court concerned.”
Alvin Yeo, Senior Counsel
IAA Incorporated by Reference to SIAC Rules As an aside, it is worth noting that the Court also had to consider whether the arbitration proceedings were governed by the IAA or the Arbitration Act (dealing with domestic arbitrations). Here, the Court held that as the parties had provided in the arbitration clause that the Arbitration Rules of the Singapore International Arbitration Centre “shall be deemed to be incorporated by reference into this Agreement” and that Rule 32 of these rules expressly provided that the law of the arbitration was the IAA, the parties had clearly
Andre Maniam, Senior Counsel
Contact partners Alvin Yeo, senior counsel senior partner Direct: +65 6416 8101 Email: alvin.yeo@wongpartnership.com Andre Maniam, senior counsel head – litigation & dispute resolution Direct: +65 6416 8134 Email: andre.maniam@wongpartnership.com
25
NEWS | news >>
news in briefs >> Hogan Lovells appoint Asia head to new board Lovells and Hogan & Hartson have announced the membership of their soon-to-be- merged firms’ International Management Committee (IMC). According to the firm, the IMC will be responsible for leading the strategic direction of the firm and for managing all operations of the combined firm. Their responsibilities include client and business development; financial and other operational affairs; development and implementation of firm policies; practice management and expansion; and regional management and expansion. Lovells managing partner David Harris and Hogan & Hartson chairman Warren Gorrell will serve as co-CEOs of the new firm and will lead the IMC. The committee will work closely with the recently announced Hogan Lovells board to make recommendations to on all matters falling within the Board’s authority.
►► Lateral hires Name
Leaving from
Going to
Practice areas
Location
Paul Westover
Tanner de Witt
Stephenson Harwood
Corporate
Hong Kong
►► Promotions Name
Firm
Title
Practice
Location
Linda Chang
Rouse
IP
Beijing
Tim Smith Fang Lu, Li Hairong, Li Ya, Zhang Wenyong, Zhou Bin Sun Wei, Mu Song, Zhang Jiong Xiong Rong Wang Yanzuo Zhao Ping
Rouse Zhong Lun
China country manager Executive Salaried partners
IP Corporate, M&A, finance
Beijing Beijing
Zhong Lun
Salaried partners
Real estate
Beijing
Zhong Lun Zhong Lun Jincheng Tongda & Neal Linklaters
Salaried partners Salaried partners Senior partner
Anti-monopoly, competition Capital markets, finance Litigation, arbitration, antimonopoly M&A, equity
Beijing Beijing Shanghai
Corporate, M&A, finance
Shanghai
Civil and commercial procedure, litigation and arbitration Corporate, M&A, finance Japan-Korea matters
Shenzhen
Teresa Ma Cai Keliang, Chen Yi, Chen Kai Liu Xinping Wang Xiuwei Pu Songyan
Zhong Lun Jincheng Tongda & Neal Zhong Lun Zhong Lun
Head of Shanghai office Salaried partners Senior partner Salaried partners Salaried partners
Shanghai
Shenzhen Guangzhou
►► Relocation Name
Firm
Title
Practice areas
From
To
Shaun McRobert Andrew Abernathy Robert Cleaver
Norton Rose Norton Rose Linklaters
Partner Partner Partner
Corporate, resources M&A, capital markets Corporate finance
Perth Dubai London
Hong Kong Hong Kong Hong Kong
霍金－路伟确定新全球管理委员会
路伟与霍金•豪森即将合并，近日宣布已确定全新国际管 理委员会（IMC）的成员名单。据律所透露，国际管理 委员会将负责确定律所的战略发展方向，管理合并后律 所的所有经营活动。具体职责包括：客户和业务开发； 财务和其它经营事务；制定并执行律所政策；业务管理 和扩张；以及地区管理和扩张。 路伟主管合伙人David Harris 和霍金•豪森董事长 Warren Gorrell 将担任新律所的联合首席执行官，同时 担任国际管理委员会负责人。该委员会将与近期宣布的 豪森路伟董事会密切合作，就所有董事会职权范围内的 事务向董事会提供建议。
►► hogan lovells international management committee members: • Andreas von Falck: intellectual property practice group leader • Jeanne Archibald: government regulatory practice group leader • Emily Yinger: Washington, D.C. regional managing partner • Dennis Tracey: Americas regional managing partner • Andrew Gamble: London regional managing partner • Christoph Küppers: Continental Europe regional managing partner • Crispin Rapinet: Asia & Middle East regional managing partner (pictured) • Richard Olver and Prentiss Feagles: finance co-heads • David Hudd and Ben Hammond: finance practice group leaders
26
Linklaters
Linklaters names new Shanghai head Following the recent appointment of its new Asia managing partner Stuart Salt, Linklaters has adjusted its management team again, this time for its Shanghai office. The firm has named Teresa Ma, who is currently a partner in Hong Kong, as the head of the Shanghai office. Teresa Ma Ma has more than 15 years of experience advising on public and private M&A and international equity issues in the UK and Hong Kong. She will soon relocate to Shanghai to join partners Jian Fang, William Liu, Simon Poh and around 20 associates. The firm will also relocate London-based corporate finance partner Robert Cleaver to Hong Kong in another effort to strengthen its capabilities in Greater China. Last June, the firm named Hong Kong partner Marc Harvey and Beijing partner Celia Lam as the new joint Greater China managing partners. These appointments came after former Greater China managing partner Zili Shao was promoted to Asia managing partner in May 2009. Shao stepped down from this post to take up a new role as the chairman and CEO of JP Morgan's China business at the end of last month.
年利达任命新上海主管
年利达任命 Teresa Ma 担任上海办事处主管。Teresa Ma 现为香港办事处合伙人，在上市和私营公司并购 和英国与香港的国际股权交易领域拥有超过15年的工 作经验。近期她将赴上海与合伙人 Jian Fang、William Liu 和 Simon Poh 以及约20位其他律师共事。 此前不久，年利达宣布将调派伦敦办事处公司财务 合伙人 Robert Cleaver赴香港工作，进一步巩固在大 中华地区的服务实力。
Rouse
Rouse China appoints new manager and members Rouse, an international IP law firm and consultancy, has named its new China country manager and added two senior members to its China team, in anticipation of a new wave of IP legal work to be generated via the country’s emergence as a serious global IPR player. Linda Chang, who joined Rouse in 1999 and is the firm's founding member of its China trademark group, has been appointed to the role of China country manager, taking over the helm from Luke Linda Chang Minford. ISSUE 7.2
NEWS | news >>
In addition, Tim Smith, a senior member of Rouse’s litigation group, has been promoted to executive. He will be relocated from the London head office to Beijing and will oversee the firm’s Asia litigation group. Smith joined the firm in 2008 from The International Federation of the Phonographic Industry (IFPI), where he was senior legal advisor managing litigation for the industry worldwide. Smith has experience managing litigation in more than 20 jurisdictions with particular expertise in online copyright infringement strategies in China. Cases he has handled in China include the ground-breaking action for the recording industry against Yahoo! China, regarding the operation of its specialist music search service. Rouse’s patent team in Beijing has also been given a boost with the addition of US-qualified patent attorney Jenny Luo, who joined the firm at the end of 2009. She previously worked at a Washington DCbased international law firm, and specialises in patent prosecution, litigation and transactional mattters.
罗斯国际中国区经理变更
国际知识产权律师事务所罗思近日宣布，北京办公室 的鲁克律师已经卸任中国区经理职位，由上海办公室 的常艳丽女士接任。常艳丽原为罗思中国商标部的创 办人和负责人，她是最早在中国获得商标代理人资格 的律师之一。 与此同时，罗思还于近期加强了其在中国的知识产 权诉讼以及专利业务团队。该所将伦敦资深诉讼律师 Tim Smith调任至北京，并负责带领亚洲诉讼业务团 队。去年底，拥有美国专利代理人资格的Jenny Luo律 师加入了其北京专利团队。她此前曾在一家总部位于 华盛顿特区的律师事务所工作，业务专长包括专利检 举、诉讼和交易。 罗思总部设在英国，在中国共有4个办公室分别设在 北京、上海、广州和香港。
Jincheng Tongda & Neal
Jincheng Tongda & Neal fuels expansion plans Jincheng Tongda & Neal (JT&N) recently kick-started its 2010 expansion plans by recruiting Zhao Ping and Liu Xinping as senior partners, in Shanghai and Shenzhen respectively. Liu focuses Liu Xinping on civil and commercial procedures and deals with litigation and arbitration matters. Zhao joins JT&N from Shanghai’s Shidai Law Firm, with which Jincheng enjoys a close relationship, even though the two have different operational systems. “I joined [the firm] because it has a much stricter management system and ambitious expansion plans,” he said. “I think this gives better direction and [is a] more stable platform for my career.” Zhao has a strong background in litigation and arbitration, but having recognised that dealflows are increasing, he is now also focusing on IP, foreign investment and anti-monopoly work.
金诚同达扩大合伙人团队
金诚同达律师事务所在上海和深圳分所吸引赵平和刘 信平加入并称为合伙人。 www.legalbusinessonline.com
刘信平的业务重点包括民事和商业诉讼、交易诉讼和 仲裁事务。赵平在诉讼和仲裁领域经验丰富。加入金 诚同达之前，赵平曾在上海世代律师事务所工作，他 表示：“加入金诚同达的原因在于，该律所的管理制度 更为严格，发展前景更加看好。我认为这样能帮我明 确事业发展方向，提供更稳定的平台。” 鉴于业务量不断增加，赵平目前亦参与知识产权、 外商投资和反垄断领域的工作。他表示，以往的工作 方式较为松缓，新职位可促使自己更好地发挥敬业精 神和团队协作能力。
Zhong Lun
Zhong Lun promotes lawyers to salaried partners Fifteen senior associates at Zhong Lun now have more reason to celebrate the incoming Year of the Tiger: they have been promoted to salaried partners. Ten of the newly promoted partners are based in the Beijing head office, while three are in Shanghai, one is in Guangzhou and one is in Shenzhen. Zhong Lun has a three-tier partnership structure consisting of non-equity partners (salaried partners), second-tier equity partners and senior equity partners. The latest round of promotions pushes the total number of partners at the firm to 130.
中伦将15位律师晋升为受薪合伙人
中伦的15位高级律师拥有更多欢庆虎年的原因：他们 均被晋升为受薪合伙人。 在新晋升的合伙人中，有十位在中伦北京总部工作， 三位在上海，一位在广州，一位在深圳。 中伦执行三级合伙人制，包括受薪合伙人，二级股 权合伙人和高级股权合伙人。本轮晋升使中伦的合伙 人总数达到130人。 Norton Rose
Norton Rose pushes for China market Norton Rose is continuing to fuel its Asian expansion with key partner level transfers. This time it has brought a further two partners from its offices in Perth and Dubai to Hong Kong. The arrival of corporate partners Andrew Abernathy and Shaun McRobert from Dubai and Perth respectively has increased the number of Hong Kong office partners to 16. This follows the January transfer of Melbourne-based dispute resolution partner Peter Cash to Singapore. Abernathy joined the firm in 2008 from New Zealand top-tier firm Bell Gully and has since been working for key Gulf clients, most recently the shareholders of a Bahraini finance consortium on their share sale to the Unicorn Investment Bank. He said his transfer is intended to meet a growing demand for dual English and US-qualified lawyers in Hong Kong. Meanwhile, McRobert is expected to bring in Chinese energy & resources clients, having jointly led the Deacons team on the US$1.32bn Sinosteel – Midwest acquisition in 2008. “Hong Kong is a logical extension for our resources business Shaun McRobert following our merger,” he said.
The moves indicate the firm’s Asia market strategy of matching regional industry demand with supply by transferring key talent from the firm’s Australian operations, formerly known as Deacons.
诺顿罗氏调兵遣将开拓中国市场
诺顿罗氏律师事务所不断调派重要合伙人为亚洲市场 扩张助力。近期，该律所又从佩斯和迪拜调派两位合 伙人赴香港工作。 公司事务合伙人 Andrew Abernathy 和 Shaun McRobert 分别来自迪拜和佩斯，使香港办事处合伙 人规模达到16人。此前，该律所曾于1月将墨尔本的纠 纷调解业务合伙人 Peter Cash 调至新加坡工作。 Abernathy 2008年离开新西兰顶尖律师事务 所 Bell Gully进入诺顿罗氏工作，一直为海湾地区 重要客户服务，去年参与巴林财团股东向 Unicorn Investment Bank 出售股份的交易。Abernathy 表示， 此次工作调动旨在满足香港市场对英国和美国双重执 业资格律师的需求。 与此同时，预计 McRoberts 将会带来中国能源和资 源领域的客户，2008年，他曾联合带领的近团队参与 中钢－Midwest价值13.2亿美元的收购。他表示：“继 律所合并之后，香港是扩大资源业务的理想地点。” 此次人事调动表明，诺顿罗氏制定积极的亚洲市场 战略，通过将澳大利亚业务部（此前名为的近）的优秀 人才调至亚洲，从而充分满足亚洲市场的服务需求。
Various
Stephenson Harwood
New hires for Stephenson Harwood Stephenson Harwood has made a series of new appointments in recent months in its Hong Kong and mainland China offices. This month, Paul Westover rejoined the firm’s Hong Kong office as a partner in its corporate department; he was previously a partner at Tanner de Witt. Karen Cheng and Simon Wong also joined the firm's Hong Kong office recently as senior solicitors, and associates Zoe Zhou and Steven Jin joined its Guangzhou and Shanghai office respectively. Stephenson Harwood’s strategic focus on lateral hires, reflective of its international recruitment policy, is a key component of the firm's growth strategy. “Stephenson Harwood has decided to grow through acquisition of good laterals, who are then assimilated into our firm culture,” Lai said. “Organic growth is too slow for a firm of Stephenson Harwood’s size and mergers and acquisitions are not on the table at the current time.” Lai said the dampened job market for corporate lawyers in the past year has created unprecedented hiring opportunities, and the firm has capitalised on this opportunity.
罗夏信招才纳贤
罗夏信律师事务所近月来不断招才纳贤，扩大香港和 大大陆团队规模。 本月，Paul Westover 加入罗夏信香港办事处，担任 公司事务部合伙人，他此前曾在邓伟德戴源恒律师 事务所担任合伙人。Karen Cheng 和 Simon Wong 亦于近期加入罗夏信香港办事处担任高级律师，律 师Zoe Zhou 和Steven Jin则分别加入广州和上海的 办事处。 主管合伙人 Voon Keat Lai 表示，由于去年市场对 公司事务律师需求不旺，提供了前所未有的招聘良 机，罗夏信充分把握该纳贤机遇。
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FEATURE | 2010 predictions >>
Sectors to watch in Leading industry observers predict what the Tiger Year holds in store for ten key sectors
1. Anti-Monopoly Law - Nicholas French, partner, Freshfields Bruckhaus Deringer, Beijing 2. Capital markets - Show-Mao Chen, partner, Davis Polk & Wardwell, Beijing 3. Construction and infrastructure - John Bishop, partner, Pinsent Masons, Beijing 4. Energy & resources - Rebecca Silli, partner, Gide Loyrette Nouel, Hong Kong 5. Intellectual property - Luke Minford, executive, Rouse & Co International 6. Litigation and arbitration - Peter Wang, partner, Jones Day, Shanghai 7. Outbound M&A - Xiao Yong, partner, Vinson & Elkins , Beijing 8. Private equity - Anthony Root, partner, Milbank, Tweed, Hadley & McCloy, Beijing 9. In-house practice - Laurence O’Laughlin, general counsel – China, Intel China, Beijing 10. Legal recruitment - Doreen Jaeger-Soong, managing director, Hughes-Castell, Hong Kong
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ISSUE 7.2
FEATURE | 2010 predictions >>
Anti-Monopoly Law
NICHOLAS FRENCH, PARTNER, FRESHFIELDS BRUCKHAUS DERINGER
• The emergence of an increasingly sophisticated competitions agency dealing with mergers • More evidence of formal decisions on anti-trust law by NDRC and SAIC
O
bservers predicting future trends in China’s Anti-Monopoly Law twelve months ago had already had an early taste of a potentially interesting year to come. Just six months into China’s modernised competition regime, the AntiMonopoly Bureau of the Ministry of Commerce had already imposed unconventional conditions (on industrial policy grounds) when clearing InBev’s acquisition of brewing rival Anheuser Busch, even while recognising that the deal would be unlikely to create competition concerns. That decision may not, however, have prepared observers for what was to come – including the controversial prohibition of Coca-Cola’s attempted acquisition of Chinese juice company, Huiyuan, and the surprisingly high number of private damages claims lodged before the courts. So what should senior executives and their legal counsel anticipate in the twelve months to come? On the mergers front, we should
expect two themes. The first is the emergence of an increasingly sophisticated agency, which has been working hard to establish itself as a respected and credible competition authority. MOFCOM’s efforts should start manifesting themselves in a greater degree of consistency of analysis and application of competition law principles. This is good news for business. The impact of industrial policy considerations on transactions involving foreign acquirers will, on the other hand, continue to create considerable uncertainty. For as long as the application of those policies remains opaque the nerves of foreign senior executives wishing to invest in China will doubtlessly remain frayed. And lack of formal decisions by the two government departments responsible for non-merger enforcement, the NDRC and the SAIC, will come to an end within the next twelve months. Little action is not surprising: the risk of taking bad decisions in a new and complicated area of law, where there is a
relative scarcity of internal experience and expertise, would not only damage business but would also be damaging to the two departments. After a period of capacity building by these agencies, senior executives should anticipate the first cartel investigations, which will doubtlessly focus minds on internal compliance efforts. Finally, how much should executives worry about the threat of private damages actions? Does the surprisingly large number of cases so far suggest a highly litigious anti-trust environment in China? Not necessarily – we will see more judgments in the next six months or so as cases brought on so far work their way through the system. The number of new actions brought on will probably start to decrease as plaintiffs come to appreciate the high evidential burden required to win an anti-trust case. A perception of unfairness is not a sufficient ground on which to base a successful claim.
Capital Markets
SHOW-MAO CHEN, PARTNER, DAVIS POLK & WARDWELL
• 2010 will be an even bigger and busier year for IPOs by Chinese companies • Some IPOs – even by deserving companies – may not be completed at hoped-for prices, or at all
I
POs will be the main focus for many firms, not least since China led the world in public offerings in 2009. Of the US$100bn raised globally last year the Chinese capital markets claimed the top spot, with 172 IPOs raising $63bn, well ahead of the US and Europe. Of these, Hong Kong hosted 73 IPOs raising $33bn; and mainland China (the Shanghai and Shenzhen stock exchanges) hosted 99 IPOs raising $30bn. In comparison, the US exchanges saw 68 IPOs raising $26bn in 2009 and Europe saw 151 IPOs which raised $11bn. Even so, Chinese companies played a significant part in these IPO activities outside of China. Approximately one-tenth of the total IPO proceeds raised in US capital markets in 2009 were accounted for by Chinese companies. NASDAQ saw eight IPOs by Chinese companies raising $1.5bn and the NYSE saw five raisings worth $500mn. Against this impressive backdrop, we look ahead to 2010, where stock exchanges and commentators are already predicting an even bigger and busier new year for IPOs by Chinese
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companies. Many factors will help keep Chinese stock exchanges as the destination of choice for IPOs of dynamic Chinese companies this year – for example, typically higher valuations, lower maintenance costs, closer coverage by domestic research analysts, and the issuers’ greater familiarity with domestic regulations. Regulatory impediments, however, may prove challenging to prospective issuers. The long waitlist to secure regulatory approval for a domestic IPO is well-known. So is uncertainty engendered by regulatory responses to changes in market and economic conditions. For example, suspension of domestic IPO approvals amid slumping Chinese stock markets in September 2008 ensured that there was no IPO activity on Chinese stock exchanges until June 2009. Likewise, the Chinese government’s tightening monetary policy announced for 2010 will likely mean that no domestic IPO will be approved where proceeds will be used to repay bank loans or replenish working capital.
In guidelines that took effect from June 2009, the China Securities Regulatory Commission made clear its intention to reduce the role to be played by administrative guidance in pricing future IPOs in China. It noted in an interpretive interview that while the measures will lead to greater stability in stock market prices in the long run, there may well be greater fluctuation in IPO prices in the short run. True enough, in the second half of 2009 new shares traded below the IPO price on the first day of trading for two domestic IPOs and were priced at the low end of the range for one, in each case contrary to established practice. This trend will likely continue into 2010. In addition, the expected volatility of stock markets in 2010, both inside and outside of China, will likely mean that IPOs by Chinese companies may bunch up in the few perceived market windows during the year. Some IPOs – even by deserving companies – may not be completed at hoped-for prices, or at all. This will, of course, disappoint some Chinese companies and their capital markets lawyers.
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FEATURE | 2010 predictions >>
construction
John Bishop, partner, Pinsent Masons
• Construction market regulation continues to improve • Further development of disputes regulation techniques to gain momentum
W
ith the Year of the Bull drawing to a close, it seems that, despite the impact of the GFC, China’s construction sector has not suffered as many other industry sectors have. In a recent press release, the head of China’s National Bureau of Statistics, Mr Ma Jian Tang, disclosed an impressive figure of RMB4.2bn for the year’s total infrastructure investment, an increase of 44.3% from 2008. Consistent with the expansion of the construction sector, there are good reasons to expect a number of developments in construction law, regulation and judicial practice in 2010. With the government-financed infrastructure market boom, construction market regulation has become increasingly important. The Regulation on Construction Market Administration is expected to be promulgated by the State Council soon. The construction sector has been keen to see this in the expectation that it will provide a clearer legal basis for adopting some of the forms of contracting widely used in the international market (for example, design and build).
Implementing Rules for the PRC Bidding Law (the draft of which was issued for public comment in September 2009) are also expected to be released. Bidding is the required procurement method for most of the government-financed construction projects and these rules are expected to set out more detailed regulations relating to bidding for projects. The PRC’s Tort Liability Law will come into effect on July 1, 2010, in response to publicity from the collapse of a Shanghai apartment block and other “Tofu buildings”. Where a collapse occurs causing injury or damage to persons or property, claims for compensation may be brought against the developer and the contractor, who may face not only joint and severable liability but also strict liability. 2010 may also see a significant step forward for the standardisation of construction documentation, including updating the model building construction contract most widely used in China (GF-1999-0201). For governmentfinanced projects using procurement methods
that include bidding, standard bidding documents (including general conditions of contract and special conditions relative to particular sectors as prepared by various Ministries) are expected to become widely used. In 2010 we can expect to see in practice how new rules introduced during 2009 concerning construction contract law will be applied. One example is when a court or arbitrator should adjust the rate of liquidated damages specified in a contract, in light of the actual loss suffered. Another highlight expected for 2010 in this field will be the further development of dispute resolution techniques, as CIETAC leads the way in promoting adjudication and the BAC develops mediation procedures and the use of dispute boards. These dispute resolution mechanisms, which have proven popular in the resolution of disputes internationally, are still new to China. Yet with powerful sponsors such as these their adoption rates can only be expected to gain momentum in 2010. I believe we can expect an exciting year!
Energy & Resources REBECCA SILLI, PARTNER, GIDE LOYRETTE NOUEL
• Continued development in large-scale infrastructure, in particular in renewable energy projects • Increased outbound investment to secure key energy resources
C
hina’s energy sector faces multiple challenges in 2010 including soaring domestic demand, unbalanced internal production structures (mostly reliant on high-polluting energy sources) and a growing dependence on energy imports. Fortunately, the establishment earlier this year of the National Energy Commission, headed by Premier Wen Jiabao, is a clear sign that the Chinese authorities are taking the issues very seriously. This ‘super ministry’ will help China build a coherent global energy policy and launch the structural reforms that are needed in the short term. Some of the changes law firms may expect as a result of these developments are:
1. A more developed legal framework. As China continues to shape its legal regime across the energy sector, legal professionals will need to keep themselves well informed on new developments. This year may see the promulgation of the long-awaited Energy Law and Atomic Energy Law and revisions to
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existing laws including the Electric Power Law, Mineral Resources Law and the Coal Law. This increasingly complex legal environment will mean more regulatory work for lawyers – in particular in relation to pricing mechanisms, tax incentives and subsidies, emission trading and environmental standards. 2. Greater priority for renewable and clean-energy projects. Renewable energy is targeted to represent 15% of China’s power generation by 2020. Recent amendments to the Renewable Energy Law are expected to help boost investments in non-fossil fuelbased power sources such as wind, solar, hydropower, biomass and geothermal. Infrastructure investment will continue to be most prevalent in projects such as nuclear power stations and wind farms and the solar industry should also benefit from the combination of a favourable regulatory environment and strong support from the Chinese authorities.
In addition, as electricity grid companies are now required to buy all the power produced by renewable energy generators, further expansion and upgrades in the power grid network will be inevitable. China will take this opportunity to develop efficient ‘smart grids’ and adopt electricity storage technology. Traditional power generation will not be left aside and inefficient/old power generators are likely to be replaced, by advanced thermal generation technologies and equipment that reduces sulphur dioxide emissions. All these trends may benefit foreign investors, including equipment manufacturers with the right technology. 3. Gold rush for overseas energy resources. Large, cross-border M&A transactions and overseas infrastructure projects by PRC companies should keep the energy practices of law firms busy in 2010, as China’s appetite for energy resources grows. ISSUE 7.2
FEATURE | 2010 predictions >>
IP
Luke Minford, executive, Rouse
• China’s intellectual property landscape is changing in ways not seen before, driven by the leadership’s central vision of an economy founded not on manufacturing but on independent innovation • Government bodies and the judiciary are moving to support and, in some cases, force China’s progress up the value chain with unparalleled speed
W
e believe four themes will emerge. First, we will see real progress made by the judiciary as it seeks to implement recent directives of the Supreme Court, leading to ever more civil litigation. This progress will be characterised by a significant increase in the level of damages awards, by improved application of pre-trial remedies, and by policy steps taken to improve the enforcement of IP awards (however, actual progress on this last point will be slow). Litigation, not administrative action, will emerge as the real solution to IP infringement in China. Second, two questions will be critical for China’s technological development. The ability of state-funded institutions to unlock their R&D cupboard and take their innovations
to market, and secondly, whether Western cities like Chengdu and Xian will respond to recent government policy and become viable technology centres that attract hightech investment. If these two questions are answered positively, the Year of the Tiger will be a good one for China. Third, there are also real danger signals this year, as China’s long-term desire to be independently innovative could translate at the local level into blatant domestic protectionism, exacerbated by the country’s obvious short-term need for foreign technology. Managed badly, these flash points could lead to both foreign and domestic communities taking positions that require years to recover. Managed well, with clear and patient
leadership, China will continue to develop as a viable place for R&D where both domestic and foreign innovation objectives can be achieved. Finally, this will be the year when Chinese companies emerge en masse onto the world’s IP stage. The Year of the Ox saw Huawei become the world’s leading filer of PCT applications, leapfrogging Samsung to the number one spot. However, last year a combination of state-led directives and funding commitments for domestic companies that file internationally gave Chinese companies unprecedented reason to go global with their IP. Expect a sharp increase in overseas filing, IP acquisitions and disputes involving Chinese companies. Foreign law firms should be licking their lips.
Litigation & Arbitration PETER WANG, PARTNER, JONES DAY
• China is on course to become the world’s most litigious nation • Overseas litigation and investigations involving Chinese companies, or arising from activities in China, to grow dramatically
C
hina-related litigation and arbitration will continue to increase in frequency and importance this year, reflecting the significance to multinational companies of their China businesses and the expanding activities of Chinese companies abroad. Both Chinese and foreign parties are more willing to litigate and arbitrate as they become more familiar with domestic and overseas dispute resolution processes. For international law firms, adding real litigation and arbitration capabilities will be an important part of diversifying their traditional China corporate practices. China is on course to become the world’s most litigious nation. Its courts already boast the most active patent litigation docket and have issued several large damages awards in IP cases involving foreign parties. The courts have accepted a series of closely-watched antimonopoly lawsuits that may set new ground rules for how large companies operate in China. MNCs frequently must defend themselves in PRC courts as domestic plaintiffs grow more aggressive and have more tools (such as the new AML) at their disposal. Foreign companies also are filing their own suits as they gain confidence in local courts, or conclude that they have little other choice.
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And China has become a key front in global battles between foreign companies over critical issues ranging from technology licensing to monopolization. Working closely with the best local litigators, international counsel can play an important role in these cases by building up on their multi-jurisdictional involvement in related disputes, detailed knowledge of client businesses, and deep substantive expertise. Overseas litigation and investigations involving Chinese companies, or arising from activities in China, also are growing dramatically. Chinese companies both large and small are being sued around the world, but especially in the US. No longer only contract or shipping disputes, the cases now often involve specialised matters such as product liability, FCPA/bribery, anti-trust, patents, and securities law. Firms must field closely integrated teams of litigators in China and in the “destination” jurisdiction with specialised knowledge and experience to efficiently handle such litigation for increasingly sophisticated and demanding Chinese clients. Arbitration will continue to play an important role in China’s dispute resolution process. The number of arbitration cases and the magnitude
of claim amounts have continued to increase in the mainland and in neighboring jurisdictions over the past decade. Disputes are becoming more varied, with IP and finance arbitrations joining commercial, investment, and construction matters. Foreign companies are more willing to arbitrate in China. Many disputes arising in China, and offshore disputes involving Chinese parties, also increasingly are referred to prominent offshore arbitral institutions. As China’s outbound focus continues to broaden from minerals to include trade and infrastructure projects (such as the proposed US high-speed rail projects), Chinese companies venturing outside the country will be confronted with new challenges, including more rigorous international contracting and procurement standards and an increased emphasis on quality and safety. Firms handling disputes for such global clients will need to have integrated worldwide capabilities and arbitration specialists with experience before each major international arbitration institution, and strong local dispute resolution resources on the ground in multiple key locations, including in China.
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FEATURE | 2010 predictions >>
M&A
XIAO YONG, PArtner, VINSON & ELKINS
• The capability of Chinese companies to execute world-class transactions continue to grow • Much of the outbound M&A activity will remain in the energy & resources sector
I
n 2000 the Chinese government initiated a campaign to encourage Chinese companies to zou chu qu (go out/go abroad). The end of 2009 marks the first decade of this campaign and is a useful time to reflect upon the results achieved, and what we expect going forward in 2010. In this respect, it must be indisputable that the campaign has been a staggering success. In this decade Chinese companies have made a total of US$187bn in overseas acquisitions, accounting for 2.2% of worldwide crossborder M&A activity. However, even those numbers do not show the full magnitude of the country’s success, as over US$115bn of that value was accounted for in the last two years alone. There was US$73bn in acquisitions made in 2008 and a still-strong showing of US$42.6bn in 2009, despite the intervening world financial crisis. Based on number of deals, 2009 was the best year on record
and the second-best year on record based on aggregate deal value, trailing only the previous year in this category. In addition to the rise in deal numbers and value, those deals completed in 2009 exhibit the growing sophistication of Chinese companies. Chinese companies now rank third among the biggest foreign M&A investor nations, after the US and France. With the expected continued economic recovery to come in 2010, we fully expect China to continue its upward trend in outbound acquisitions, since Chinese companies are increasingly participating in deals of significant complexity. Deals such as the acquisition of dual-listed multinational corporations such as Sinopec’s C$10.3 bn purchase of Addax Petroleum, the largest-ever international acquisition by a Chinese energy company, and the purchase of distressed assets (Shougang’s acquisition of the global brakes and suspensions business from GM’s former automobile parts
subsidiary, under Chapter 11 bankruptcy) come to mind. These deals clearly show the capability of Chinese companies to execute world-class transactions. In terms of industry sectors, much of the focus in the last year was in the energy and natural resources sectors – China was the world’s largest M&A investor abroad in these sectors for 2009. Given the ongoing increases in domestic Chinese energy demand, we expect that much of the activity this year will remain in this sector. And 2010 is already shaping up to be a good year. PetroChina has reported that it had just completed the acquisition of a 60% stake in Canadian oil sands projects from Athabasca, a transaction worth CNY$1.9bn. There have also been a number of transactions announced in the mining sector, including China Railway Materials Commercial Corporation signing a conditional agreement to acquire a 12.5% stake in African Minerals Limited.
Private equity
Anthony Root, partner, Milbank, Tweed, Hadley & McCloy
• Increasing competition between international private equity funds and local private equity funds • International buyout funds will see more opportunities to form consortiums with Chinese companies, in connection with outbound M&A deals
W
e expect 2010 to be a more active one for private equity than 2009. The Chinese economy will likely rebalance in 2010 after the super “V” shape rebound seen in 2009. Under this macro environment, the buy side (i.e. private equity investors) and the sell side (i.e. Chinese entrepreneurs) will have a good opportunity to address the valuation gap that has been hindering the private equity deal-making since the second half of 2008.
We have seen an uptrend of private equity deal activity level since late 2009 and expect that trend to continue in 2010. We also expect increasing competition between international private equity funds and local Chinese private equity funds. The Shenzhen
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venture board launched in October 2009 provided a potentially promising, but as yet limited, onshore exit for international private equity investors. An increasing number of small to medium sized enterprises may choose ‘A’ share listing for higher valuation and regulatory restrictions over overseas listing. For those companies, local Chinese private equity funds have competitive advantages, including the RMB fundraising capabilities. We expect that local Chinese private equity funds will continue to gain market share in small-to-medium-sized investments below $20-30m. Meanwhile, an increasing number of international private equity funds will seek to form onshore RMB funds and
consider onshore exits for their investments in China. Buyout transactions in China will still be challenging but we expect international buyout funds will see more opportunities to form consortiums with Chinese companies, in connection with outbound M&A deals. Chinese buyers may want the international funds’ participation as a buffer to reduce political or cultural sensitivities. This trend will present good opportunities for international law firms focusing on highend private equity practice. In terms of sectors, we expect consumer, healthcare, alternative energy and natural resources will continue to be “hot” investment areas for 2010.
ISSUE 7.2
FEATURE | 2010 predictions >>
in-house practice
LAURENCE O’LAUGHLIN, GENERAL COUNSEL – CHINA, INTEL CHINA
• Increasing specialisation of in-house roles • The absolute cut-off on external legal spend may not reoccur, but MNCs will watch closely how they spend and expect further scrutiny from the bean-counting part of the business
F
oreign multinational coroporations (MNCs) in China will see a couple of significant areas of development in the coming year. There will be increasing specialisation of in-house roles, following China’s rapidly developing legal system seeing a greater demand for environmental law and litigation management skills among the inhouse “generalists”. China has been very active in the last year in the areas of competition, environmental protection, and IPR. In-house lawyers, especially those with several years’ experience in private practice, and with specialised knowledge in areas such as competition law, environmental law and IPR will continue to have abundant opportunities to demonstrate their skills in the marketplace. With its new competition law regime, China’s role in M&A approvals among top MNCs will gain more attention, with the value proposition
of in-house growing. For those companies with strong market share, unfair dominance issues may arise from consumers and regulatory officials. Of course, all in-house counsel should have additional skills sets but with China’s increasing willingness to flex its muscle in the M&A approval area, this will mean demand in this area and a serious uptake in activity for in-house and external counsel. Also, China’s complicated and often regionally-specific environmental laws present another challenge for the in-house lawyer, and a clear opportunity for specialists to move in-house. MNCs with operations throughout the country will continue to face more stringent requirements under environmental laws and the value-proposition of an in-house lawyer will become more compelling. For the in-house lawyer (one of the few domains remaining for “generalists” in the legal profession), the coming year could
bring a more contentious legal environment. With China’s increasing sophisticated legal environment, consumers and companies will turn more to the courts to obtain redress for their grievances. With the passage of the long-awaited tort law, companies should be prepared for an increase in litigation by consumers. And with more litigation, inhouse counsel will need to be knowledgeable about the domestic litigation process, effectively managing the it as well as outside counsel. As for external legal spend, the absolute cut-off we saw from early 2009 onwards may not reoccur, but expect MNCs to watch closely how they spend and expect further scrutiny from the bean-counting part of the business. There won’t be significant hiring happening, but as always, talent will be in demand for those specialised skill sets, particularly in the post-financial crisis operating environment.
Legal job market
Doreen Jaeger-Soong, managing director, Hughes-Castell
• A large uptake for banks and non-bank financial organisations to be anticipated • Bilingual and bi-cultural candidates based overseas will find they have a multitude of attractive options when they return home
W
hat a difference a year makes! At this time in 2009 everyone was predicting the collapse of the global capital markets and anticipating financial Armageddon. However, on the eve of the New Year we are seeing a much brighter picture. Capital markets in Greater China are definitely improving, though still volatile. M&A activity is returning, albeit at a slower pace, and both inbound and outbound investment numbers are rising.
Since Q4 2009 we have seen associate recruitment at law firms pick up in China. Levels are now back to pre-crash volumes in terms of supply and demand. Top-quality capital markets lawyers who are bi-lingual and have strong academics are once again highly sought after. Away from capital markets, practice areas such as arbitration and dispute resolution, intellectual property and M&A (especially in the energy, oil & gas areas) are recruiting www.legalbusinessonline.com
heavily. The lateral partner market is also busy, with groups as well as single laterals being courted by new market entrants or established firms seeking to grow their market share. For laterals, most firms require a strong market reputation with relationships that are truly portable. The China in-house market has held up surprisingly well, with considerable recruitment at the general counsel level. We’ve seen many senior-level hires in the past year now looking to build up their legal teams. There’s been a marked increase across the board – in all industries from industrial to technology to consumer – where corporations have invested in managementlevel legal hires. Understandably, financial institutions have been lagging but we anticipate a large uptake for banks and nonbank financial organisations in this coming year. Compliance has been (and remains)
a major growth area for multinationals and financial institutions doing business in China. We are seeing many corporations increasing their headcount in areas like trade compliance, corporate governance and FCPA compliance, as well as in the more specialised practice areas like banking. While the US and Europe markets remain mired in economic recovery, China has demonstrated its ability to be a force of its own. Although export numbers are down, the Chinese economy has shown remarkable strength and resilience. This has resulted in multinational companies continuing to redirect resources to Asia – and mainland China in particular. As a result, bilingual and bi-cultural candidates who are now based overseas are finding they have a multitude of attractive options when they return to their home country.
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FEATURE | YRD report >>
ALB Special Report:
Yangtze River Delta 2010
Hangzhou
Ningbo
Nanjing
Emergence of new opportunities, firms pledge local allegiance ►► YRD region– crowded legal market: Cities Hangzhou
Ningbo Nanjing
Suzhou
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Number Beijing firms of firms 189 King & Wood 金杜 Dacheng 大成 Huatai Law Firm 华泰 Giant & Goal Law Firm 国纲 Huamao & Guigu 华贸硅谷 90 Zhongji Lawyer 中济 Grandall Legal Group 国浩律师集团 115 Hylands Law Firm 浩天信和 Huicheng Law Group 惠诚 108
King & Wood 金杜
Shanghai firms Jianwei Law Firm 建纬
Rolmax Law Firm 汇盛 JoinWay Law Firm 中汇 Guangming Law Firm 光明 Junyue Law Firm 君悦 Yi Shi Law Firm 毅石 Guangming Law Firm 光明 Shimin Law 世民 Jianwei Law Firm 建纬 Shiwei Law Firm 四维 Co-effort Law Firm 协力
Suzhou
T
he legal market in the Yangtze River Delta (YRD) region has undergone significant change in the past year. While last year many MNCs ceased investment interests, China’s domestic companies also saw opportunities to venture forward. 2009 also witnessed the birth of many new firms and branch offices in the region, as it remains crucial to the development of many firms. Firms in the leading cities are recognising the need to make drastic changes to stay ahead of the game. Some have ventured onto foreign ground through undertaking new legal practice areas. Others are working on their internal structures to gear up their professional standards. With the re-entrance of international conglomerates and the continued international aspirations of many domestic companies, the YRD region is beginning to offer up a new class of wealth for lawyers and law firms. ISSUE 7.2
FEATURE | YRD report >>
Zhejiang Hangzhou
Hangzhou firms are gearing up for the emergence of new practice areas in 2010. More specifically, lawyers foresee the rise of legal demand in niche sectors and are prepping their teams beyond the traditional work areas. Brighteous, with 19 partners focusing on litigation matters, is one of those firms. It saw revenue growth of 20% over 2009 and has flourished with mandates from over 200 long-term clients, including Youngor, Guangsha Construction and Zhejiang Daily. But the firm has greater ambitions. “The GFC brought along an increase in litigation matters, due to disputes between international and domestic companies. In order to move forward we need to look at what 2010 has to offer, and I think it’s time to take on new practice areas,” said the firm’s partner Cui Haiyan. She left Xingyun Law Firm in 2006 to set up Brighteous, having identified a gap in the market for high-end specialist legal services. “We want to balance the work ratio of our non-litigation work to that of our litigation matters. At this stage, we are looking to extend (but not limited to) PE and capital markets,” added Cui. More firms are also recognising Hangzhou’s market potential. The city saw five new law firms flock to the legal community, including DeHeng Law Offices which hired AllBright lawyer Wu Lianming to head up its office. The firm focuses on three practice areas – capital markets, Cui Haiyan real estate and M&A – Brighteous and currently houses five partners and 10 lawyers. “Hangzhou offers great business opportunities for DeHeng Law Offices, especially with the rising demand for capital markets legal services and the growing enterprise base,” Wu said. The hopes held for Hangzhou’s business horizon legitimised when it launched the region’s first legal services centre in Xiaoshan, the most economically developed administrative district of Hangzhou. Founded by the www.legalbusinessonline.com
►► Zhejiang - explosive growth Economic Indicators
2008 Value
GDP (RMBbn)
2,148.7
Fixed-assets investment (RMBbn)
932.3
Retail sales (RMBbn) Exports (US$bn)
Jan-Nov 2009 Growth (%, y-o-y)
Value
Growth (%, y-o-y)
1,582.8
7.7 ¹
10.7
713.2
14.3
744.1
19.8
775.5
15.3
154.3
20.3
119.4
-16.1
- By FIEs (US$bn)
54.2
14.9
40.2
-19.9
Imports (US$bn)
56.9
17.0
49.0
-8.1
- By FIEs (US$bn)
29.3
22.9 21.9
-20.5
Utilised FDI (US$bn)
10.1
-2.8
-13.7
Cities Hangzhou (杭州) Ningbo (宁波)
GDP (RMBbn) 478.1 396.4
10.1 ¹
Per capita GDP (RMB) 60,414 56,771
Hangzhou Bureau of Justice in August last year, the centre is intended to facilitate the provision of legal services to businesses and provide reliable information so they can choose the appropriate legal services provider. The centre utilises more than 120 registered lawyers from 27 firms, including Rosen, Havins & Gu from the US, Woo Kwan Lee & Lo and Robertsons from Hong Kong. The other firms are leading local firms, such as Zhong Lun, Grandall and JT&N. With a formalised legal service directive, the hub, home to many high-tech and innovative companies like Alibaba Group and Wahaha Group, promises those lawyers practicing in the region an almost certain ability to expand their firms’ business. For example, L&H Law Firm’s success in 2009 reflects this opportunity. The firm is one of Hangzhou’s leaders, serving mostly medium-to-large companies. It has enjoyed a 30% increase in mandates –albeit having taken a blow to its debt restructuring practice. “Post GFC, our clients are placing more importance on being able to withstand risks, they also have stricter requests and higher demand for quality legal services,” said Zheng Jindu, a partner at the firm. “This mindset brings about more work in due diligence since our clients (Fortune 500 companies) require stringent regulations,” L&H is focusing on capital markets, real estate, and the insurance sectors this year. “In 2010, we want to push our deal value up to US$90m, from US$80m in the previous year. We also hope to attract more business from SOEs,” said Zheng.
7.8
Gross industrial Retail sales output (RMBbn) (RMBbn) 933.2 155.8 853.8 123.8
Exports (US$bn) 33.6 46.3
►► Hangzhou deal highlights
• GCL-Poly acquired Jiangsu Zhongneng for US$3.4bn. The acquirer was advised by Grandall and Freshfields, Jiangsu was advised by Milbank Tweed • CIC acquired 3,100 shares from GCL-Poly for US$709m. The acquirer was represented by Richards Butler, GCL-Poly was advised by Freshfields
►► Zhejiang legal market highlights: • Hangzhou’s legal community is forecasting the emergence of demand over a broader spectrum and in higher-end practice areas, including capital markets, insurance and real estate • Zhejiang launched the region’s first legal services centre in Hangzhou in 2009, boosting confidence in the market outlook for 2010 • More domestic firms from first-tier cities are entering the Hangzhou market • Ningbo firms are also diversifying into other areas of practice including insurance and capital markets • More Ningbo companies are venturing overseas after the financial slowdown, foreshadowing a healthy increase in domestic legal matters • Ningbo port is planning a US$1.0bn dual-listing in Shanghai later this year
“We want to balance the work ratio of our non-litigation work to that of our litigation matters” Cui Haiyan
Brighteous 35
FEATURE | YRD report >>
Ningbo
Ningbo has one of the largest ports in China and offers great opportunities for many shipping firms in the region. Grandall Legal Group affirmed Ningbo’s vitality when the firm opened its tenth office last year in the important port city. Opening in Ningbo gives Grandall three offices in the YRD region, with Shanghai and Hangzhou being the other two. Managed by Li Daofeng, who served as a judge in Ningbo’s Maritime Court, the Ningbo office was established to provide advice regarding shipping, property and insurance matters. The firm also offers general corporate and international trade legal support.
responsible for allocating resources for offices in the YRD region and building up the development, training and internal structure for its YRD counterparts. In Ningbo, the demand for legal services has also increased. “The GFC caused a lot of disputes between and within businesses. International companies in Ningbo and its domestic associates have all turned to legal advisors to resolve their issues,” Li added. With top logistics and shipping companies such as Maersk, MSC, and Lloyd Triestino operating in the region, the success of Ningbo’s shipping sector has propelled the city beyond
“In the past no one was really interested in listing criteria, but you will now see companies taking the initiative to ask questions like what are the differences between listing in Ningbo and Hong Kong? [Listing] has matured significantly and has now become a springboard to success for Ningbo firms” However, Ningbo companies have also been venturing into regions outside of Zhejiang. “This globalising trend continues to be very promising. Given that Ningbo has the second- largest dock in China, the region brings many international investors and these major companies demand a very niche area of legal service,” said Li. Grandall’s Ningbo office has surpassed the Shanghai office for networking and is building its maritime practice over the next three years. It will also be 36
Li Daofeng
Grandall Legal Group
its own expectations. For example, the American Bureau of Shipping launched a Ningbo office in April last year; and an increase in the entry of internationally recognised companies has helped the city’s shipbuilding sector expand in an overseas market. Domestically, state-owned Ningbo Port Group Ltd, the world’s eighthlargest port by container throughput, plans to launch a dual listing in the first half of 2010. Shanghai International Port (Group), the largest
►► Ningbo: deal highlights
• Baoshan Iron & Steel acquired a 56.15% stake in Ningbo Iron and Steel from Hangzhou Iron and Steel Group for US$295m
port operator in mainland China by throughput, will subscribe to some ‘H’ shares of Ningbo Port. In 2008, Ningbo Port’s cargo throughput reached 362 million tons, remaining the secondlargest in mainland China. Apart from shipping and maritime business, Grandall also recently launched its capital markets practice and beefed up its insurance sector. “Capital markets is [a sector] doing well above our expectations. We only recently launched [the] sector and [we] are already dealing with current IPOs and listings. In the past no one was really interested in listing criteria, but you will now see companies taking the initiative to ask questions like what are the differences between listing in Ningbo and Hong Kong?” said Li. “It has matured significantly and has now become a springboard to success for Ningbo firms. This is good news also because very often, apart from listing, these clients also require other legal advice like restructuring.” In the insurance sector, the firm gained clients like Chinese insurance conglomerates Pingan and Taiping last year. Grandall is confident about its prospects and plans to recruit 20 lawyers during this year to boost its branch resources. The firm also wants to expand into a further four practice areas later this year. ISSUE 7.2
Firm Profile
Yongheng Partners
R
Yongheng Partners: driven by passion to work out of a box
oaring into the Year of the Tiger with a new lease of life, Yongheng Partners are embracing their endeavours with new directions in 2010. Li Min, Chief Partner, Yongheng Partners Trailing back to the 1980s and after several structural changes, the firm has evolved to today’s Yongheng Partners. Working on brand new platform, Yongheng Partners is currently run by 12 partners and over 60 lawyers who together pledge the firm to building teamwork and undertaking stringent and effective management systems. “From the very beginning, Yongheng Partners have adhered to the ideals of “strategic planning, excellence in service, teamwork and goal-oriented productivity “and has always worked towards providing clients with exceptional quality legal services,” said Li Min, chief partner of the firm.
Legal expertise Partners at Yongheng have more than two decades worth of experience and have earned their reputation as legal experts in finance, securities and international investment sectors. In its areas of focus, Yongheng Partners has devised and allocated specialised teams for each sector.
The firm also has had extensive experience dealing with debt market and bank loan matters, acting for major banks like the Industrial Commercial Bank of China, Bank of China and the Export-Import Bank of China as part of its clientele. Yongheng Partners has maintained its steady steps in the capital markets sector, and the outlook, partners say, look bullish. “There are many small and medium enterprises in the region that are now looking to get listed. We hope to provide some first-hand information for our clients regarding their endeavours and are therefore planning to conduct conferences very soon,” said Chen Yingning, director of Yongheng. The firm has advised many listed companies and government authorities and continues to provide innovative legal advice to existing and potential clients.
Starting local, going global Yongheng Partners is very optimistic about the 2010 legal market outlook, “Companies in Nanjing have boosted their confidence levels in domestic firms like ours, so there has been an influx of local legal demand. While we keep a keen eye out for domestic companies, we’ve also boosted our FDI teams with international lawyers to take on international companies,” said Chen. Pursuing international clients, the firm
永衡昭辉：执着追求出类拔萃
步
入虎年，永衡昭辉律师事务所 不断开拓进取，在2010年努力 完成全新业务目标。 该所的法律服务可追溯到80 年代，后经数次变更重组，演变为现在的永衡 昭辉。凭借全新平台，永衡昭辉现拥有12位合 伙人和60多位律师，团队成员紧密协作，执行 严格高效的管理体制。 律所首席合伙人黎民表示：“自成立之初，永 衡昭辉始终秉承‘专业筹划、勤勉服务、团队智 慧、成就价值’的服务理念，为客户提供卓越品 质的法律服务。”
法律专业实力
永衡昭辉的合伙人拥有二十多年行业经验，是 金融、证券、国际投资领域声誉卓著的法律专 家。对于重点业务领域，永衡昭辉安排专业律 师团队为各领域客户提供服务。 在债务市场和银行借贷领域，律所拥有丰富业 务经验，曾为中国工商银行、中国银行、中国进 出口银行等大型金融机构提供法律顾问服务。 永衡昭辉在资本市场领域维持稳健发展，合 www.legalbusinessonline.com
伙人认为，律所的业务前景光明。永衡昭辉合 伙人黎民表示：“中国有众多渴望上市的中小 企业。我们希望为客户提供上市相关的第一 手信息，计划在近期举行业务推广会议。”该 律所曾为多家上市公司和政府机构提供顾问 服务，将继续为现有和潜在的客户提供创新 法律顾问服务。
立足本地，放眼全球
永衡昭辉对2010年的法律市场前景保持乐观， 合伙人陈应宁表示：“南京企业对国内律所的服 务能力信心倍增，本地法律需求将不断增加。 在注重国内客户的同时，我们还积极吸引国际 律师加入，扩充外商直接投资业务团队，努力 把握国际客户。” 为争取国际客户，律所不断聘请拥有国际工 作经验的律师，近期吸引精英律师团队加入， 这些律师在美国、香港、欧洲和英国拥有国际 专业服务能力。 历经过去20年的多次架构调整之后，永衡昭 辉树立明确目标，决心成为本地区法律服务行 业的领先机构。合伙人黎民表示：“永衡昭辉已
continues to hire more lawyers with international experience and has recently recruited an elite group of lawyers with international Chen Yingning, expertise mainly in Director, the US, Hong Kong, Yongheng Partners Europe and the UK. After undergoing several structural changes in the past 20 years, Yongheng Partners have found its beacon and is determined to lead the legal industry in the region. “The new structure and foundation of Yongheng Partners have instilled great hope in all of us. The standard of management, quality of work, professionalism and teamwork will continue to be our top priorities,” said Li. Yongheng Partners takes great pride in its abilities to work out of the box; its teammembers provide support for each other and hence flourish with great brainstorming capabilities. “We constantly brainstorm new ideas for our clients because we want to globalise together with our clients.” In three to five years, the firm aims to be the leader in the region for capital markets, outbound investment, insurance and finance sectors. With a fiery passion and innovative strategies, Yongheng Partners charge towards a very picturesque horizon.
建立全新的管理架构和业务基础，业务发展充 满希望。管理标准、工作品质、专业水准和团 队协作始终是我们首要工作任务。” 永衡昭辉对其出类拔萃的业务能力倍感自 豪；其团队成员相互支持，充分激发工作潜 能。“我们不断为客户提供全新思路，希望与客 户共同实现业务全球化。”律所计划在三至五年 内成为本地资本市场、境外投资、保险和金融 领域的领先机构。凭借执着工作热情和创新业 务战略，永衡昭辉正朝更美好的未来迈进。
►► Yongheng Partners deal highlights 2009
• Advised lenders related to a US$150m syndicated loan by Kia Automobile • Advised Nanjing Pukou District People’s Government regarding the Nanjing Science & Technology Park project finance worth US$2bn • Advised lenders related to a US$236m syndicated loan to Erzhong Group (Zhenjiang) Heavy Equipment Factory • Advised Shanghai Jinfeng Investment and Zijiang Enterprise in the RMB600m transaction
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FEATURE | YRD report >>
Sunshine Law Firm – Emitting energy for China: bringing legal services to energy projects
C
hina’s recent pursuit of natural resources has got many law firms flurrying into the sector, but with a steady footing, Sunshine Law Firm has emerged as a force to be reckoned with in the industry. Sunshine is the only firm in China fully dedicated to energy and environmental legal matters. Established in 1995 and headquartered in Hangzhou, the firm began its energy venture with a focus in electricity and power. Quickly expanding into coal, oil and gas, and renewable resources, the firm today offers one of the most prominent energy expertise in the country. In 2004, years ahead of the rest, Sunshine expanded into Beijing to serve existing and potential clients better due to its pre-eminent location. In 2009, it launched a Shanghai affiliate, Sunshine New Energy Legal Research Centre, after envisaging the country’s strategy on natural resources. “The economy of the energy sector has taken a very significant shift; China is focusing in this industry and has brand new demands for the new energy service industry. We constantly keep up with these demands and have since been enjoying mandates from the local governments on developing renewable energy,” said Jane Chen, founder and managing partner for Sunshine Law Firm. The firm serves many long-term conglomerates including the National Development and Reform Commission (NDRC), State Electricity Regulatory Commission (SERC) and the State Grid Corporation, in their business ventures. The firm’s operation consists of three specialised departments – Project & Business, Engineering & Construction and Corporate & Finance. “We emphasize tacit coordination between our different departments to ensure that we provide the highest quality of legal services,” said Chen.
Expert skills Amongst its other stringent requirements within the firm, teamwork and integration of the headquarters and its counterparts also play a significant role in the firm’s work. Utilising an advanced multifunctional e-information working platform, the firm advises clients from all over the country including those who have investment interests in over 20 countries and on construction
38 38
projects which are based in the US, UK, Italy and Korea. Sunshine places utmost importance in providing pre-eminent legal solutions by integrating individual expertise and experience. “I believe in strategic delegation: work should be delegated to partners who have the most expertise in tackling our clients’ specific requests. At Sunshine, we work with a client-oriented mindset,” Chen explains. The firm is staffed with elites from top law schools who are effectively multilingual. They are experts in electric power, engineering, financing, project finance, project management, tax, insurance, international trade and environment areas of practice. Some are also certified accountants, tax agents, security practitioners and engineering specialists. Besides their legal aptitude, Sunshine also prioritises other qualities in its search for legal talents. “Sunshine lawyers are driven by the belief that they are a crucial part of their clients’ projects. They need to be passionate about what they do for without competent lawyers to assist in power plant construction, these grand-scale projects can easily become tied up in litigation resulting from poor contractual negotiations and improper risk assessment,” said Chen.
A leader’s foresight Since Sunshine’s establishment, Chen has worked tirelessly to build the firm. Recognised as a pioneer in the energy services field, she has won accolades in her years of practice. She is currently the vice-president of the Zhejiang Provincial Affiliate Bar Association and in 2007, she was awarded “Distinct Contributor to the Legal Profession in Zhejiang Province” in recognition of her work. In 2008, Sunshine was awarded “National Outstanding Law Firm.” Chen has been monitoring the trends of these elements for over two decades. Well equipped with extensive experience in the energy sector, Chen has led many large-scale national focus energy projects since the early 1990s. She specialises in construction and engineering projects, tendering and bidding, project management, project finance, M&A, restructuring and dispute resolution.
Going global Going forward, the firm has great ambitions. “We are dedicated to all of our clients’ needs
Jane Chen Zhen
and are very excited about aiding them in their globalising plans,” said Chen. The firm plans to pace its international steps according to its clients’ goals and will continue building its international expertise to suit future client needs. “Sunshine integrates legal, financial, engineering, and management knowledge to best help our clients avoid risk and successfully profit both domestically and internationally,” said Chen. To better address the topic of climate change facing the global community, Sunshine has strived to develop and expand into new energy and environmental area. “Bringing legal services to new energy and environmental area will bring brighter sunshine to the world,” concludes Chen. “That’s the mission of Sunshine Law Firm.” Sunshine Law Firm 阳光时代律师事务所 1108 Block C, World Trade Centre No. 122 Shuguang Road Hangzhou PRC 310007 Tel: 86- 571- 87635155 Fax: 86-571-88254910 www.sunshinelawfirm.com ISSUE 7.2 ISSUE 7.2
Firm Profile FEATURE | YRD report >>
Sunshine Law Firm
阳光时代律师事务所 – 关注中国能源市场： 面向能源项目提供法律服务
鉴
于中国近期在能源领域动作频 频，众多律所纷纷涉足，阳光 时代律师事务所凭借稳健的业 务发展策略，已成为该领域举 足轻重的服务机构。 阳光时代是中国唯一专注于能源和环境法律 业务的律师事务所。该律所成立于1995年， 总部位于杭州，起初重点开拓电力领域的业 务。阳光时代的业务随着能源产业的发展迅 速扩大至煤炭、石油、天燃气和可再生能源 领域，现已成为中国能源领域最知名的法律 服务机构之一。 自2004年开始，阳光时代开始在北京设立办 公机构，在核心城市为已有的客户和新客户提 供更好的服务。2009年，阳光时代紧跟中国的 新能源发展战略，在上海成立名为阳光新能源 法律研究中心的附属机构。 阳光时代创始人兼首席合伙人陈臻表示：“ 能源领域的经济发展出现重大转变；中国非 常重视新能源产业的发展，对于能源服务行 业有全新需求。我们紧跟市场需求的发展， 政府发展新能源的一系列法规令我们的业务 获益匪浅。” 阳光时代为诸多重要机构提供长期服务，包 括国家发展和改革委员会（NDRC）、国家电 力监管委员会（SERC）以及国家电网公司。 该律所设立三个专业部门－国际项目与商 业、工程与建筑以及企业与金融。陈臻表示：“ 我们注重不同业务部门的协作，确保提供最高 水准的法律服务。”
专业实力
在开展法律服务的过程中，团队协作、总部 整合以及同行竞争对事务所的业务发展均有 重要影响。 阳光时代采用先进的多功能电子信息工作平 台，为全国各地的客户提供服务，包括为客户 在境外二十多个国家的投资并购、工程建设项 目提供服务，并同时为来自美国、英国、意大 利、韩国等境外客户提供服务。阳光时代尤为 注重整合个人专业实力和经验，从而为客户提 供卓越的法律解决问题方案。陈臻表示：“我 们坚持将业务应安排给在满足客户具体需求方 面最具专业实力的合伙人负责。在阳光时代， 我们的工作始终围绕客户的需求展开。” 阳光时代的律师均是顶尖法学院的精英， 拥有多语言服务能力。其律师团队是电力、 工程、融资、项目融资、项目管理、税务、保 险、国际贸易和环境领域的专家。部分律师还 是注册会计师、税务代理人和工程专家。 在搜寻法律人才的过程中，阳光时代不仅 注重法律专业实力，还看重人才的其它特质。 陈臻表示：“阳光时代的律师均秉承相同的信 念，即律师是客户项目团队的重要组成部分。 律师必须对自己的工作充满热情，如果没有称 职的律师为项目建设提供协助，糟糕的合同谈 判和不当的风险评估会引发诉讼纠纷，令大规 模项目举步维艰。”
领导者的远见
阳光时代自成立以来，陈臻不知疲倦地推动律
所发展。作为能源服务领域的先锋，她在多年 工作中赢得行业盛赞。她现任浙江省省直律师 协会副会长，2007年荣获“浙江省律师行业突 出贡献奖”。2008年，阳光时代被评为“全国优 秀律师事务所”。 二十多年来，陈臻始终关注能源领域的发 展趋势。她在能源领域拥有丰富经验，自90 年代初期以来，曾主持多个大型国家能源项 目的法律服务。她的业务专长包括建筑和工 程项目、招投标、项目管理和境内外、项目 融资、并购、重组和纠纷解决。
放眼全球
展望未来，阳光时代雄心勃勃。陈臻表示：“ 我们致力于满足所有客户的需求，能帮助客 户实现全球化计划，我们倍感兴奋。”阳光时 代自2000年开始开拓国际项目，目前计划在 协助客户实施“走出去”战略方面已取得的出 色业绩的基础上，跟随客户的业务目标进一 步开拓国际市场，继续加强业务研发，巩固 国际法律服务实力，满足未来的客户需求。 陈臻认为：“阳光时代整合法律、金融、工程 和管理服务实力，从而帮助客户规避风险， 在国内和国际市场成功实现盈利。” 为更好应对全球气候变化的问题，阳光 时代已同时大力拓展新能源和环境领域的 业务发展。陈臻总结道：“在新能源和环境 领域提供法律服务能给全世界带来更美好 的阳光。这正是阳光时代律师事务所肩负 的使命。”
►►Sunshine Law Firm – list of legal services
• Investment, construction and operation of energy projects • In 2008, Sunshine facilitated power plant and mining projects with a total investment value of over US$500bn • Legal consulting for the government • Entrusted by the SERC to draft administrative regulations and standard contract templates in relation to electric power, coal and other energy sectors as well as the construction industry. • Clean development mechanism (CDM) projects • In 2005, Sunshine became the first law firm in China to provide legal services for CDM projects, reducing over 10 million tons of carbon dioxide emission annually • Large-scale nuclear construction projects • Sunshine has provided extensive legal services to Sanmen Nuclear Power, Qingshan Nuclear Power and Taohuajiang Nuclear Power for their nuclear power projects • Assisting enterprises go global • Sunshine has assisted clients globalise throughout Southeast Asia, North America, the Middle East, Africa, and other regions – assisting in JVs, BOT, M&A， conducting EPC projects. To date, the planned investment amount of the projects has reached over US$100bn. • Legal risk assessment projects • Since 2008, Sunshine has assessed risks for more than a dozen medium to large-sized enterprises including Zhejiang Electric Power Company, Northwest Power Grid, Zhejiang Guohua Zheneng Power Generation. www.legalbusinessonline.com
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FEATURE | YRD report >>
Jiangsu Nanjing
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Legal work is flooding into Nanjing from all directions as international companies reignite their interest in the region. Domestic companies have also now mustered the courage to venture forward, with lawyers in Nanjing optimistic about the 2010 legal market in the region. They are eagerly waiting for an outburst in legal demand and many have already launched expansion plans and strategised their objectives, in accordance to their predictions and deal flows. In the past when international companies were looking to invest into Nanjing, they’d most likely approach firms in Beijing, Shanghai or even Hong Kong because it seemed that only first-tier cities were able to handle higher-end legal matters. But as Nanjing firms continue to evolve, international enterprises are learning to entrust their concerns to local firms. 2009 marked a shift in Nanjing in demand, towards high-end and niche legal services. Firms in the region are quickly beginning to appreciate the need to facilitate work in the top end. For example, seven partners left FD Yongheng to pursue their ambitions in the niche sectors, by setting up Yongheng Partners in May last year. The firm currently Jing Zhong Yongheng houses 12 partners and Partners 60 lawyers and has enjoyed mandates from major companies like the Bank of China (Jiangsu branch) and the Agricultural Bank of China. Yongsheng Partners has structured teams of lawyers for its predicted sectors of importance – outbound investment, debt markets, finance, capital markets and insurance. Jing Zhong, who is a partner at the firm, explains these predictions. “The capital markets moratorium was the biggest challenge for Nanjing firms in the past 12 months, but while that was the case, the finance sector was burgeoning with bank loan transactions. And while international PE firms went silent in that time, domestic PE firms saw their opportunity and flourished. Today these sectors continue to hold
►► Jiangsu - powering ahead Economic indicators
2008 Value
Jan-Nov 2009 Growth (%, y-o-y)
Value
Growth (%, y-o-y)
GDP (RMBbn)
3,031.3
12.3
2,391.5
11.7
Fixed-assets investment (RMBbn)
1,506.0
22.8
1,330.4
24.8
Retail sales (RMBbn)
966.1
23.3
830.4
17.7
Exports (US$bn)
238.0
16.8
139.7
-22.7
- By FIEs (US$bn)
175.0
12.5
102.1
-22.9
Imports (US$bn)
154.2
5.7
99.0
-19.4
79.8
-22.2
- By FIEs (US$bn)
128.6
3.3
Utilised FDI (US$bn)
25.1
14.7
Cities
GDP (RMBbn)
Per capita GDP (RMB)
Gross industrial output (RMBbn)
Retail sales (RMBbn)
Exports (US$bn)
Suzhou (蘇州)
670.1
106,863
1,863.0
155.1
131.7
Nanjing (南京)
377.5
60,807
647.2
165.2
23.6
great potential as there are many more small- and medium-sized enterprises which have survived the GFC, now looking to get listed and raise funds.” Few would argue on the importance of these sectors, especially in the debt markets. “Debt markets have done very well over the past year as domestic companies venture overseas, while their international competitors are being beaten down by the GFC. These companies turn to bank loans because they need the funds to move forward,” said Henry Tang, a partner at Co-far Law Firm. “Nanjing lawyers have also scored significant work regarding regulatory checks and business restructuring during this time, as small- to mediumsized clients were struggling to hold their ground. This will continue in 2010 because these companies now appreciate the importance of compliance,” Tang added. While the focus is now on boosting capabilities to serve niche areas of work, Nanjing firms have not lost sight of their future. Both Co-far Law Firm and Henry Tang Jiangsu Co-far Yongheng Partners have Law Firm pledged strategic loyalty to the YRD region, as their expansion plans at this stage will not go beyond these regional borders.
►► Jiangsu legal market highlights
• Nanjing companies reportedly have increased confidence in domestic firms’ competence for providing higher-end legal services • Nanjing firms are gearing up to boost their practices handling niche practice areas; real estate and IP are among the other practice areas to look out for in Suzhou • Capital markets has had the most significant growth over the past 24 months • Local firms are increasingly building relationships with firms from first-tier cities which have a presence in Suzhou
►► Nanjing deal highlights
• ARA Asia Dragon Fund acquired Nanjing International Finance Centre for US$234m. ARA was represented by Baker & McKenzie and the sellers were advised by Lovells • Nanjing Iron & Steel Union issued US$36m worth of corporate bonds and was advised by JC Master
►► Nanjing listed companies breakdown At the end of 2008 there were a total of 48 listed companies based in Nanjing, consisting of: • 34 companies listed in China ‘A’ share market • 1 company listed in China ‘B’ share market • 8 companies listed in Hong Kong • 2 companies listed in the US • 2 companies listed in Singapore • 1 company listed in London
ISSUE 7.2
FEATURE | YRD report >>
Suzhou
According to ZhuHui Law Firm, legal services demand in Suzhou is accelerating alongside other cities in the YRD region, especially in the capital markets sector where demand flew through the roof over the past 12 months. Aside from capital markets, Suzhou identifies slightly different important sector areas to that of the other cities. Real estate and Taiwanese investments are on the list. “The real estate sector is set to prosper to an extent that it might be on par with the values in Shanghai and Beijing. The outbound Taiwanese investment, I foresee, will also do well past Shenzhen and Guangzhou,” said Zhu Wei, a partner at ZhuHui. ZhuHui has plans to launch other offices to link its practices across Suzhou, Wuxi and Changzhou. Other notable sectors that performed well during the financial slowdown were the firm’s bankruptcy, debt market and business restructuring practices. The firm advised on Ke Hong’s bankruptcy, which was one of the biggest bankruptcy cases in China. Another prominent position Suzhou adopted in 2009 was its position on fighting the country’s piracy problem. In October last year, a district court in Suzhou sent four men to prison and ordered them to pay RMB1m in fines for infringing Microsoft’s copyright. The decision was widely regarded as a milestone in China’s efforts to crack
www.legalbusinessonline.com
►► Suzhou deal highlights
• Poly Development Holdings acquired both Zhengzhou Dafang Co and Suzhou Dafang Vehicle Co for US$263m
down on software piracy. It will prompt the legal community to re-think the possibilities that IP law can offer them. “Suzhou has a very concentrated hub of companies and its one of the top-three business regions in China, so legal services demand will undoubtedly continue to rise,” said Zhu. Recognising the increasing importance of Suzhou connecting to the YRD region, in January 2008 King & Wood launched an office there with three partners and six supporting staff. The Suzhou office focuses on the areas of restructuring and private placements, securities, M&A, FDI, litigation, arbitration and labour laws. The opening, alongside its Shanghai and Hangzhou (launched in 2006) offices, affirms the potential of the YRD region. Since the establishment of its Suzhou office, King & Wood has formed friendly working relationships with local firms like New Talent. The firm’s three offices in the region share resources and provide support to each other when needed. And the communication and cooperation between firms and offices is bound to be more extensive if the predicted 2010 business outlook eventuates. ALB
“Debt markets have done very well over the past year as domestic companies venture overseas, while their international competitors have been beaten down by the GFC. These companies turn to bank loans because they need the funds to move forward” Henry Tang
Jiangsu Co-far Law Firm
41
FEATURE | construction >>
Construction:
building global success
42
ISSUE 7.2
FEATURE | construction >>
C
hinese construction companies have been significantly expanding their global portfolios and market shares, from highways in Kenya and power plants in Brazil to high-speed railways in Turkey and skyscrapers in Dubai. While these companies are making remarkable inroads into the international construction market and paying more attention to legal risk management, their law firms have also seen their construction practices flourishing, with legal teams growing and billable hours soaring. A quick glance at the latest statistics from the Engineering News-Record (ENR) shows 50 Chinese companies made it into the 2009 Top 225 international contractors ranking. Their total revenue from overseas markets reached US$43.2bn in 2008 – a stunning 90% year-on-year growth rate. One example is China Railway Group. The world’s second-largest construction contractor by total contracting revenue and one of the country’s top ten international contractors has seen 128% growth in its overseas revenues for the first half of 2009 (US$1bn). Some of the bids it won last year included building roads in Fiji, Ethiopia, Ghana and Gabon, and railway restoration projects in Venezuela. Its top-three practice areas for outsourced work are in securities and capital markets, cross-border M&A, and due diligence and compliance for large cross-industry investments. Yu Tengqun, the company secretary and former legal director of the Hong Kong and Shanghai duallisted construction conglomerate, has identified that establishing a comprehensive and effective risk management system for the group is challenging. Since China Railway Group became a public company in 2007, it is expanding into new overseas markets and new industries. With over 500 in-house legal staff, the group works regularly with various law firms on the surging volume of projects and legal matters both at home
►► Top 10 Chinese contractors* ENR rank 2 4 6 7 9 29 31 32 48 55
Company
China Railway Group Beijing China Railway Construction Corporation Beijing China State Construction Engineering Beijing Corporation China Communications Construction Group Beijing China Metallurgical Group Corporation Beijing Shanghai Construction (Group) General Shanghai Corporation Sinohydro Corporation Beijing Zhonghao Overseas Construction Engineering Co Beijing Dongfang Electric Corporation Chengdu China National Chemical Engineering Group Beijing Corporation
2008 revenue (US$m) total 34,548 32,417 27,659
New contracts in 2008 (US$m) 62,731 54,111 57,104
25,966 23,314 10,062
40,707 30,973 10,024
8,923 7,671 5,111 4,399
14,141 21,094 11,142 7,810
Source: ENR’s 2009 Top 225 Global Contractors * Based on total firm contracting revenue
►► Top 10 Chinese international contractors* ENR rank 14 17 25 28 51 56 59 61 62 72
Company
Headquarters
Zhonghao Overseas Construction Engineering Co. China Communications Construction Group China State Construction Engineering Corporation China National l Machinery Industry Corporation China Railway Construction Corporation Sinohydro Corporation CITIC Construction China Metallurgical Group Corporation China Railway Group China Civil Engineering Construction Corporation
Beijing
2008 revenue (US$m) international 7,671
2008 revenue (US$m) total 7,671
Beijing
5,859
25,966
Beijing
3,523
27,659
Beijing
3,081
3,858
Beijing
1,957
32,417
Beijing Beijing Beijing
1,804 1,621 1,373
8,923 1,672 23,314
Beijing Beijing
1,338 1,083
34,548 1,233
Source: ENR’s 2009 Top 225 International Contractors *Based on contracting revenue from projects outside home country
and abroad. China Railway’s most-used firms include international names like Linklaters, DLA Piper and Lovells, and domestic firms like Jiayuan, Zhong Lun and Jianyuan. International firms with global coverage and strength in construction law are naturally well positioned to capitalise on the rise of Chinese companies on the international contracting scene. “We always take the view that China outbound work will be the future for international firms,” says Hew Kian Heong, head of Pinsent Masons Shanghai office. “We’ve focused on advising major Chinese construction
“Chinese construction companies are becoming an emerging force in the world construction and contracting markets” www.legalbusinessonline.com
Headquarters
Ji Nuo
Fangda Partners
and engineering companies building projects around the world since the launch of our China practice.” Pinsent’s strategy to focus on construction practice in China was formed partially as a response to the increasing competition in the market. Its Shanghai office was opened in 2002 as a niche construction practice, seeking to distinguish itself from the many large international firms already established there. The firm has also recognised that foreign firms’ advantages do not lie in inbound investment and domestic projects. This is due both to the fact that local law firms are catching up quickly on quality and capacity in this domain, and that the restrictions on foreign firms’ licenses limit their ability to compete for domestic and inbound work. “The effects of the GFC may 43
FEATURE | construction >>
“As China construction companies have gained more knowledge and experience in international markets they will demand a higher level of skills and knowledge from their legal advisors” have caused a decline in our revenue from China inbound work, but we are fortunate enough to maintain steady growth as we have experienced strong demand from our Chinese clients over the past 12 months,” says Hew. During 2009, at least ten of the 30 major Chinese construction companies which Pinsent Masons has previously worked with instructed the firm to advise on new projects in many countries – including Pakistan, Indonesia, Sri Lanka, Afghanistan, Fiji and Singapore. The types of projects ranged from power plants, roads and bridges to sugar factories and cement plants. “We expect to grow substantially our team that primarily focuses on China outbound work. That’s where our future growth will from,” Hew says. ALBcome HP Advert - FEB 10 19/02/2010 Currently, three partners lead
Qin Yu
Jun He
12 associates and consultants focusing primarily on construction in the firm’s Beijing and Shanghai offices. The total headcount of lawyers for Pinsent Masons is expected to grow to 20 in the next two years.
Follow clients abroad
Following closely behind international firms are an array of leading domestic construction practices. Having worked with construction companies on home projects for the past decade, these trusted domestic legal advisors increasingly receive new instructions from their clients who are entering overseas markets. “Chinese construction companies are becoming an emerging force in the world construction and contracting markets. They increasingly have to abide by the 09:35 Page 1 rules of international law and regulations
in other jurisdictions,” says Ji Nuo, a partner with Fangda Partners. “When they face difficulties and legal matters overseas, they will turn to us for initial consultation and support, and we will work together with an international firm or a local firm from that foreign jurisdiction to provide the best possible solutions.” Ji says that demand for legal representation for international arbitration, in particular, has grown significantly in recent years. Beijing-headquartered V&T is another firm that intends to increase its focus on Chinese companies’ overseas projects in the next two years. The firm’s construction and infrastructure practice was established in 2008 by joining with a strong team (led by partner Wang Jihong) from Beijing City Development Law Firm. Wang, now a senior partner of V&T, pinpoints opportunities in the highspeed railway construction industry. “China’s high-speed railway network is leading the world in both length and technologies. Its cooperation in this area with other countries, such as the
Asia's leading construction law firm Your construction projects need lawyers with a holistic insight into the issues that can arise throughout the project's life. At any stage, be it structuring, bidding, or dispute avoidance and resolution, having the right lawyers on board will help to keep your project on track. Pinsent Masons' reputation in the construction sector is second to none. We understand the unique issues that affect construction projects around the world. As leaders in the industry, our projects, construction and energy lawyers have all the expertise you need. John Bishop john.bishop@pinsentmasons.com +86 10 8519 0011
Hew Kian Heong hew.kheong@pinsentmasons.com +86 21 6321 1166
Proud to have been working in Asia for 25 years
www.pinsentmasons.com/asiapacific © Pinsent Masons LLP 2010
44
ISSUE 7.2
FEATURE | construction >>
US, Russia, India and Brazil, will grow strongly and lead to more cross-border legal work,” he says. “It will also create more incentives and opportunities for domestic firms and international firms to work together.” Domestic law firms are gaining an increasing share of the outbound construction market segment, and more firms are keen on entering the field. However, the threshold for firms to compete and perform well is constantly being pushed higher. For example, China Railway Group now has higher requirements for external counsel. According to Yu Tengqun, law firms wanting to work for the group need to have extensive expertise and experience in certain specialised areas. Firms must have a leading position and an enormous depth of resources, while understanding the client’s needs thoroughly, and be immediately Yu Tengqun responsive to these China Railway Grp needs, he says. They
also need to take an innovative, yet practical, approach when seeking business solutions and always look to add value to transactions. “As Chinese construction companies have gained more knowledge and experience in international markets they will demand a higher level of skills and knowledge from their legal advisors,” explains Qin Yu, a partner of Jun He specialising in industrial construction. “They’ve been doing projects overseas for a long time, generally much longer than their lawyers, so sometimes their questions to the legal counsel can be very challenging and difficult.” Qin Yu and a large team of partners and lawyers joined Jun He from legacy infrastructure and project finance boutique firm Jun Yi in 2007, and form a major part of Jun He’s current infrastructure and project finance practice group. The team has been servicing Chinese companies’ outbound projects since 2005 and has first-hand experience. “In the early days, the provision of legal advice and services to overseas projects was quite easy. Now
the matter lies in not only how good your technical skills and knowledge are, but also how well you understand clients’ business and strategies and apply the legal skills and knowledge to help achieve their business goals.” Qin has followed clients to over ten countries; mostly in Africa, South America and the former USSR. One of the recently completed projects is CITIC International Cooperation’s EPC contracts for three cement production lines in Belarus. The project is the largest industrial cooperation project between China and Belarus. A Jun He team led by Qin participated in the whole process, from contract drafting to negotiation and providing advice on contract implementation. “Considering the stage of market developments, more opportunities can be expected in this area. Domestic firms will have increased chances to serve as lead counsel in overseas projects, due both to their strengthened capabilities and the proximity to clients’ decision-making authorities, who are mostly based in China,” Qin says. ALB
Firm Profile
Zhongmao Law Firm
专
中茂：全力打造专业优势
业无疑是一家律师事务所得以 立足的根本，中茂律师以深 厚的专业功底和丰富的实践经 验，展现了其为建筑房地产项 目提供全方位、多层次、优质法律服务的卓 越能力。 在为建筑房地产项目提供法律服务的过程 中，中茂除了优质完成日常性法律服务工作 外，还针对工程建设中出现的重大、疑难、前 瞻性法律问题，以组织研讨、提交专题法律报 告和撰写论文及专著等形式进行研究并提出科 学的解决之道，迄今为止中茂有关工程建设法 律问题研究发表了论文近二十篇，出版了专著 两本。此举不仅保障了工程建设的顺利进行， 也为工程建设积累了解决实践问题的丰富案例 和经验，这一特色成为中茂在建筑房地产法律 服务领域的一大亮点。 在建筑房地产法律服务领域，中茂为中国 2010年上海世博会筹建、上海虹桥综合交通 www.legalbusinessonline.com
枢纽、第一高楼“上海中心”大厦、上海中环 线、上海市沪闵轨道交通延伸段、上海外滩 地区交通综合改造、上海新发展万豪大酒店 建设项目、上海市苏州河沿岸旧区改造、上 海青草沙水源地原水工程、上海龙华地区民 航发展用地开发和运营、上海外滩滨水区综 合改造、中国国际采购中心工程建设、上海 迎宾三路隧道新建工程、上海北翟路立交、 上海多条高速公路、闵浦大桥、“浦江世博家 园”基地建设、上海市政府拆迁安置房基地开 发建设、露香园房地产开发、月星环球商业 中心等特大型市政、房地产项目提供全程或 专项的法律服务。 经过多年的努力，中茂已取得建筑房地产领 域法律服务的领先地位，不仅得到了广大建设 和施工单位的赞誉，还得到了律师业同行的认 可，2009年中茂被评选为“上海市十佳律师事 务所”暨“上海市优秀律师事务所”。 立志高远的中茂绝不仅仅满足于过去的成
绩，在巩固建筑房地产领域的法律服务优势 的同时，近几年中茂已开始加强发展金融、公 司领域的法律服务，并且已经取得了良好的成 绩，中茂正由单个特色专业向数个优势专业并 举的方向有力迈进！中茂首席合伙人盛雷鸣表 示：“拓展专业领域是我们当前最重要的发展 战略，中茂经过了十年的起步阶段，凭借专业 优势，将在下一个十年开创新的辉煌。”
中茂律师事务所 中国上海市遵义南路88号协泰中心9层 (200336) 电话：+86 21 31359919 传真：+86 21 31359929 电子邮件：shzm@zhongmaolawyers.com 网站：www.zhongmaolawyers.com
45
Market Data | M&A >>
46
ISSUE 7.2
Market Data | capital markets >>
Equity Capital Markets TRANSACTIONS List China, Hong Kong Jan 31 - Feb 27 Issuer
Proceeds (USDm)
Issue Date
Currency
Bookrunner(s)
Sector
China Huatai Securities Co Ltd
2,298.1
10/02/10
CNY
Haitong Securities
Financials
China First Heavy Industries
1,669.8
02/02/10
CNY
BOC International (China) Ltd
Materials
Intl Mining Mach Hldg Ltd
326.6
04/02/10
HKD
UBS AG; BOC International (China) Ltd
Industrials
Befar Group Co Ltd
306.2
09/02/10
CNY
Guosen Securities Co Ltd
Materials
Guizhou Chitianhua Co Ltd
248.5
26/02/10
CNY
Zheshang Securities Co Ltd
Materials
Beijing Water Business Doctor
211.7
03/02/10
CNY
Huatai United Securities Co
Retail
China SCE Property Holdings
200.9
02/02/10
HKD
Deutsche Bank (Hong Kong); CCB International Capital Ltd; Macquarie Bank
Real Estate
Chu Kong Petroleum & Natural
173.8
02/02/10
HKD
ICBC (Hong Kong); JP Morgan Secs (Asia) (HK)
Materials
Zhejiang NHU Co Ltd
168.4
08/02/10
CNY
Pingan Securities Co Ltd
Materials
Hanwang Tech Co Ltd
165.7
05/02/10
CNY
Zhong De Securities Co Ltd
High Technology
Shantou Wanshun Package Co Ltd
142.7
03/02/10
CNY
Bohai Securities Co Ltd; Minzu Securities
Consumer Products and Services
Qinjiang Yongan Pharma Co
106.7
11/02/10
CNY
Guosen Securities Co Ltd
Healthcare
Bluefocus Communication Co Ltd
99.2
03/02/10
CNY
Huatai United Securities Co
Media and Entertainment
Wuhan Zhongbai Group Co Ltd
91.6
01/02/10
CNY
Changjiang Securities
Retail
Shandong Longji Co Ltd
79.1
11/02/10
CNY
Minsheng Securities
Industrials
Hubei Dinglong Chemical Co Ltd
67.1
01/02/10
CNY
Guotai Junan Securities
Materials
Hangzhou Zhongheng Electric Co
55.0
11/02/10
CNY
Huatai United Securities Co
High Technology
Shanxi Tond Chemical Co Ltd
52.7
05/02/10
CNY
Zhong De Securities Co Ltd
High Technology
Anhui Shenjian New Materials
49.8
05/02/10
CNY
Pingan Securities Co Ltd
Materials
Xiamen Savings Environmental
41.1
03/02/10
CNY
Huatai United Securities Co
Industrials
Puda Coal Inc
15.6
12/02/10
USD
Brean Murray Carret & Co LLC
Materials
Esprit Holdings Ltd
600.4
04/02/10
HKD
UBS Ltd
Consumer Staples
Ruinian International Ltd
115.8
12/02/10
HKD
Hongkong and Shanghai Bkg (SG)
Healthcare
74.8
04/02/10
HKD
CITIC Securities
Industrials Healthcare
HONG KONG
CASIL Town Health Intl Hldgs C Ltd
61.3
23/02/10
HKD
Kingston Securities Limited
China Starch Holdings Ltd
50.0
03/02/10
HKD
Macquarie Equities (Asia) Ltd
Consumer Staples
Orange Sky Ent(Hldg)Ltd
42.4
10/02/10
HKD
BOC International (China) Ltd; Oriental Patron Asia Ltd"
Media and Entertainment Materials
Vitar International Hldg Ltd
40.2
26/02/10
HKD
United Simsen Securities Ltd
Forefront Group Ltd
39.6
18/02/10
HKD
Get Nice Investment Ltd
Financials
Wah Nam Intl Hldgs Ltd
38.7
09/02/10
HKD
Sun Hung Kai Investment Svcs
Industrials
China Agri-Prod Exchange Ltd
14.8
01/02/10
HKD
Kingston Securities Limited
Financials
Huafeng Group Holdings Ltd
12.3
12/02/10
KRW
Tanrich Capital Ltd
Consumer Staples
DEBT CAPITAL MARKETS TRANSACTIONS LIST China, Hong Kong Jan 31 - Feb 27 Issuer
Proceeds (USDm)
Issue Date
Currency
Bookrunner(s)
Sector
China 4,393.7
04/02/10
CNY
China Galaxy Securities Co; Western Securities
Energy and Power
PetroChina Co Ltd
State Grid Corp of China
1,611.1
05/02/10
CNY
CITIC Securities; China Construction Bank
Energy and Power
Bank of China(Hong Kong)Ltd
1,593.5
04/02/10
USD
BOC International (China) Ltd; Deutsche Bank Securities Corp; UBS AG
Financials
717.8
03/02/10
CNY
China International Capital Co; UBS Securities Co Ltd
Industrials
Beijing Capital Intl Airport Beijing Shunyi District
366.2
01/02/10
CNY
China Securities Co
Financials
Beijing Chaoyang SOA Mgmt
366.2
01/02/10
CNY
China Securities Co
Financials
CASIC
293.0
01/02/10
CNY
China Securities Co
Industrials
China South Locomotive
293.0
03/02/10
CNY
Bank Communications (Shanghai); China International Capital Co
Industrials
Datong Coal Mine Group
293.0
03/02/10
CNY
Industrial & Comm Bank China; China Citic Bank
Materials
China Longyuan Elec Power Grp
234.4
09/02/10
CNY
UBS Securities Co Ltd
Energy and Power
Sichuan Expressway Co Ltd
219.7
11/02/10
CNY
Shanghai Pudong Development Bk
Industrials
Xuzhou Coal Mining Group Corp
175.7
10/02/10
CNY
Industrial & Comm Bank China; China Minsheng Banking Corp
Materials
Nanjing He Xi SOA Mgmt
146.5
03/02/10
CNY
Huatai Securities
Financials
Maanshan Iron & Steel Co Ltd
146.5
04/02/10
CNY
China Merchants Bank
Materials
Yuntianhua Group Co Ltd
146.5
05/02/10
CNY
China Construction Bank; Bohai Bank
Financials
Jiangsu Shagang Group Co Ltd
146.5
22/02/10
CNY
China Citic Bank; Bank Communications (Shanghai)
Industrials
CDB-Hong Kong Branch
103.0
24/02/10
HKD
Standard Chartered Bank (HK)
Financials
87.9
09/02/10
CNY
Huatai Securities
Industrials
Huang Shan City Constr Invest Gui Zhou Dvlp Invest
73.3
03/02/10
CNY
Changjiang Securities
Financials
China Construction Bank HK
66.9
08/02/10
HKD
ANZ Banking Group
Financials
Yuntianhua Group Co Ltd
58.6
05/02/10
CNY
China Construction Bank; Bohai Bank
Financials
Chongqing Chem & Pharm Hldg
58.6
11/02/10
CNY
Industrial Bank Co Ltd
Retail
Hong Kong Fita International Ltd
500.0
03/02/10
USD
HSBC Holdings PLC; JP Morgan; Morgan Stanley
Financials
Noble Group Ltd
413.6
04/02/10
USD
Goldman Sachs & Co
Consumer Staples
Dah Sing Bank Ltd
225.0
04/02/10
USD
HSBC Holdings PLC; JP Morgan
Financials
HK Land Treasury Services
64.4
17/02/10
HKD
Hong Kong & Shanghai Bank (SG)
Financials
Hong Kong Mortgage Corp Ltd
25.7
06/02/10
HKD
Citibank (Hong Kong Branch)
Financials
www.legalbusinessonline.com
47
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Good Connections Make Great Careers In-house Legal Counsel (7-10 yrs pqe) Beijing or Shanghai Are you ready to join a world leader in 3D software and development? Support the expansion of this European software enterprise into China by overseeing reseller agreements, software licenses, professional service and support agreements, CDAs and other software related contracts. Software experience preferred but will consider others with a well-rounded corporate background. Ref: 8633/CB
Legal Counsel (5-7 yrs pqe) Beijing You can now oversee all Chinese legal activities and projects for a well-known multinational company. This position must proactively manage legal risks while keeping sight of all aspects of the corporate life of the company in China. You must be ready to take charge of legal support actions for large industrial cooperation projects, internal restructuring projects due to tax/ financial drivers, agreements with suppliers, day-to-day legal support to all Chinese business units and the elaboration and implementation of compliance policies in China. Ref: 8604/CB Equity Capital Markets Lawyer (2+ yrs pqe) Beijing or Shanghai Our client, a renowned UK firm, is seeking equity capital markets lawyers for their Beijing and Shanghai offices. The ideal candidates have experience listing PRC companies on the Hong Kong Stock Exchange. Fluent English and proficient Mandarin language skills are required for this role. Ref: 8628/CB (Shanghai), 8629/CB (Beijing)
Senior Legal Counsel (4-8 yrs pqe) Beijing A sovereign wealth fund seeks a Senior Legal Counsel to advise on M&A, funds, private equity and outbound investment matters. The successful candidate will be PRC qualified with US LLM or JD qualification. Wall Street experience is an asset. Native Mandarin and fluent English are essential. The company will provide excellent employment benefits to the right candidate. Ref: 8521/CB
Associate - China Group (2+ yrs pqe) London Great opportunities for dual qualified lawyers (UK and PRC) to work in London. Our client, a UK law firm, is seeking an Associate with excellent business acumen and both Chinese and English drafting skills to join their China Group. The role will involve advising European/UK clients doing business in China and Chinese clients doing businesses abroad. Candidates with good interpersonal and business development skills will excel. Requirements: Fluent written and spoken Mandarin and English. Ref: 8627/CB China Counsel (5+ yrs pqe) Beijing This is an exciting opening at a NASDAQ listed American insurance company in Beijing. The ideal candidate will need to have at least 5 years of relevant experience in this industry. The role will have frequent interactions with the US headquarters, therefore, excellent English and interpersonal skills are required. Ref: 8523/CB
Private Practice Senior Corporate Associate (4-8 yrs pqe) Hong Kong Are you an experienced corporate finance lawyer who can take the lead on deals and work with minimum supervision? If so, then this is a great chance to join this leading law firm. You must have substantial IPO experience, along with written and spoken Mandarin and Cantonese. Ref: 8664/CB
Dispute Resolution Associate (3+ yrs pqe) Hong Kong A leading international law firm has an opening in its renowned dispute resolution practice for a lawyer with at least 3 years experience in litigation and/ or arbitration. The ideal candidate will be Hong Kong qualified. Fluent written and spoken English and Chinese (Cantonese and/or Mandarin) language skills are essential. Ref 8684/CB
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Associate General Counsel – Asia McKinsey is looking to hire a lawyer to join our Asia-Pacific legal team. This new position can be based in either Singapore, Hong Kong, Shanghai or Beijing. The position encompasses a diverse range of responsibilities, including developing and negotiating a variety of contractual arrangements with our clients and third parties, providing counsel to our consultants on a variety of engagement-related legal issues covering information sharing, third-party disclosures, M&A-related issues, potential conflicts of interest and antitrust issues and providing counsel to our consultants on issues of professional or reputational risk. The ideal candidate will have around 4-5 years post qualification experience as a corporate lawyer, currently with a top law firm or in-house legal department, with experience in general corporate matters and preferably having regional experience. Excellent written and oral communications skills are required with fluency in English and Chinese a must. The role is highly autonomous and requires impeccable business judgement/ ethics with an ability to develop strong internal relationships. The successful candidate will be a confident team player with a strong presence and ability to present well. McKinsey is a premier, global management consulting firm. We have over 17,000 employees in 89 offices in 50 countries. We aspire to help the world’s leading business, governments, and institutions make distinctive, lasting, and substantial improvements to their performance and tackle their most difficult and serious challenges. If interested in this position please send your CV to: Malerie Fung McKinsey & Company, 25 Floor, Cheung Kong Center, 2 Queen’s Road Central, Hong Kong Direct: 852 2826 1252 Email: malerie_fung@mckinsey.com
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2010 predictions ■ yangtze river delta ■ CONSTRUCTION
Issue 7.2