Asian Legal Business (Northern Asia) May 2009

ISSUE 9.5

Middle East How will client demands affect the industry?

Offshore firms Why they are faring better in the downturn

Special Report: Singapore Meet the new kids on the block

ALB ASIAN LEGAL BUSINESS

Korean 2009 KOREA

DEAL OF THE YEAR 2009

Deals of the Year:

Leading in-house lawyers select the deals that have shone in Korea during the past year

PLUS:

M&A beckons in Asia

Financial services deals get smaller, faster‌ and more challenging

n Analysis n LATERAL MOVES n DEALS ROUNDUP n REGION-WIDE PERSPECTIVES n UK, US REPORTS n Sign off

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1

EDITORial >>

The GFC scapegoat

T

he trend, it seems, is to use the global financial crisis (GFC) as a scapegoat for the failures, mistakes and discomfort being faced by businesses, governments and individuals at the moment. From the likes of Bernie Maddoff and Lehman Brothers to the proprietors of Freddie Mac and Fannie May and the US government, all have found comfort in justifying their own foibles by suggesting that it was not they but rather economic meltdown which is to blame.

The legal industry has also seen its fair share of finger pointing and GFC scapegoating. From Heller Ehrman to Thelen and more recently on the issue of layoffs, redundancies, and salary freezes, law firms have also sought solace in the assertion that it is the broader macroeconomic climate that has catalysed such discomfort rather than anything they have done (or failed to do as the case may be).

In an interview with ALB, Bradford Hildebrandt, chairman and founder of international law firm consultants Hildebrandt International, disagrees with such views and asserts instead that law firms are as much to blame for the discomfort they are experiencing at the moment as the GFC. Hildebrandt contends that while the GFC has slowed the demand for legal services across the globe, law firms across the globe may have been able to weather the storm without needing to result to such drastic reactive cost-cutting measures if they had invested in the establishment of viable organizational structures which can effectively resolve the age old problem of costs versus revenues.

Instead of taking temporary refuge in counter-cyclical areas like litigation, insolvency and restructuring, law firms, says Hildebrandt, could have emerged from the current crisis in a much stronger financial and market position. But as much as structural change is required, just as important is attitudinal change.

From things such as management style, marketing and business development to the perception of the law as a profession rather than a business, wholesale change is needed, and it is change that by no means will be easily achieved.

Hildebrandt offers law firms in the region a good starting point: look in-house.

Look to establish organizational structures that are not rigid, tired or old, but dynamic. And start planning for the next crisis now so you won’t be using it as a scapegoat the next time around.

Instead of taking temporary refuge in counter-cyclical

areas like litigation, insolvency and restructuring, law firms could have emerged from the current crisis in a much stronger financial and market position

2

IN THE FIRST PERSON “The process of offshore firms taking on more jurisdictions is bound to continue and whether that be through mergers, tie ups or opening completely new offices we don’t know. But what we do know if that the process will not be scaled back” Conyers Dill & Pearman’s John Colliis on how the global financial crisis is driving expansion rather contraction for offshore law firms (p52)

“You can’t say you’re in Asia if

you’re not in China”

Gibson Dunn & Crutcher’s Asia & Pacific managing partner on his firm’s plans to expand into North Asia (p57)

“The Chinese are definitely interested in investing now, and they’re not about to wait,” Mallesons Stephen Jaques’ Stephen Minns on why FDI won’t remain quiet in China for long (p59)

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News | deals>> >> CONTENTS

contents

ALB issue 9.5

46

40 COVER STORY 40 Korean Deals of the Year 2009 ALB reveals Korea’s top deals of 2009, as selected by a panel of experts

ANALYSIS 8

Strategic M&A Financial services companies are vigilantly looking to expand their operations by engaging in strategic M&A in the year ahead

10 Infrastructure funds The Asian funds industry is showing vital signs in the economic gloom and may just be the industry’s beacon in the storm 12 Employment boost Indian firms are reaping the benefits of the contracting legal market abroad by recruiting top talent from international firms 13 Middle East restructuring Clients are demanding more from their firms, and increased competition in the region will mean firms will have to listen and learn

FEATURES 36 ALB Special Report: Singapore 2009 ALB finds that Singapore’s new firms are not focusing on just the Lion nation 46 Offshore firms What is next for offshore law firms and how do they market themselves in a downturn?

58 56 ALB Managing Partner Series Find out why Gibson Dunn & Crutcher’s Jai Pathak says the firm’s Asian strategy may be perceived as a little odd

20 International tax Azure

58 China FDI: Two-way street

Chinese FDI is not all one way and firms are

still anticipating strong inbound activity

22 Intellectual Property ATMD Bird & Bird

Regulars 14 • • • • • • • • •

NEWS Indian legal market ‘not for sale’ Freshfields unveils new regional chief Clyde & Co partner sets up Saudi alliance Cambodian firms have to adapt to survive Anger at ‘unlawful’ Fijian appointments Allens Arthur Robinson boss says there will be no forced layoffs Malaysia to let five foreign firms set up locally Four-day week gets thumbs up Korean partial liberalisation puts mergers back on the agenda

REGULARS 16 UK report 18 US report 26 Mergermarket M&A update 84 Sign off

4

56

21 Financial Services Howarth

23 International arbitration Drew & Napier 28 REGIONAL UPDATES • China Paul Weiss • Philippines SyCip Salazar Hernandez & Gatmaitan • Malaysia Tay & Partners • Singapore Loo & Partners • Indonesia BTPartnership

PROFILES 50 Harneys 60 Loo & Partners

ALB ASIAN LEGAL BUSINESS

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 Asian Legal Business can accept no responsibility for loss.

Asian Legal Business ISSUE 9.5

NEWS | deals >>

deals in brief | INDONESIA/THAILAND | ►► PTT Group - Straits Asia stake acquisition Value: US$325m

►► CJ Home Shopping Star Group JV Value: US$27m

Firm: Allen & Gledhill Client: PTT International Lead lawyers: Prawiro Widjaja

Firm: Bae Kim & Lee Client: CJ Home Shopping Lead lawyers: Joonki YI, Michael H. Lee, Ellen Y. Hong

Firm: Deacons Client: PTT International Lead lawyer: Shaun McRobert

• CJ Home Shopping has established a 50:50 JV with Star Group to start a home shopping business in India Shaun McRobert

Firm: Deacons WongPartnership Client: Straits Asia Lead lawyers: Ng Wai King, Dawn Law Firm: Shook Lin & Bok Singapore Client: JPMorgan • Thailand multi-national energy company PTT International acquires 60% stake in Straits Bulk & Industrial (SBI) • Deal gives PTT access to SBI’s coal asset interests in Brunei, Madagascar and Indonesia • Deacons team advised on cross-border due diligence, JV negotiations and competitive bidding structure

| JAPAN | ►► Morgan Stanley Japan Securities - Mitsubishi UFJ Securities JV Value: Undisc Firm: Sullivan & Cromwell Client: Mitsubishi UFJ Financial Group Lead lawyers: Donald Toumey, Stanley Farrar Firm: Freshfields Client: Morgan Stanley Lead lawyers: James Lawden, James Wood, Naoki Kinami • Formation of a securities joint venture combining Morgan Stanley Japan Securities and Mitsubishi UFJ Securities • The two securities businesses will operate as single as yet unnamed JV in Japan, with a management team drawn from both companies • Mitsubishi UFJ will own a 60% stake, Morgan Stanley 40% stake

6

| INDIA/KOREA |

• Initial investment by each company is US$27m • CJ Home Shopping is first global company to enter home shopping industry in India

| CHINA | ►► Grand Point Investment - Tianjin Port Company stake acquisition Value: US$1.8bn Firm: Freshfields Bruckhaus Deringer Client: Grand Point Investment Firm: Global Law Office Client: Tianjin Port Development Holdings

| SINGAPORE/CHINA |

Firm: K&L Gates Client: Tianjin Port Development Holdings

►► Atlantis Resources Corporation - Statkraft JV

• Grand Point Investment Limited signed an agreement to acquire 56.81% stake in Tianjin Port Company

Firm: Drew & Napier Client: Atlantis Resources Corporation

| CHINA/TAIWAN | ►► Unimicron Technology Corp - Phoenix Precision Technology Corp acquisition Value: US$362m Firm: Chen & Lin Client: Unimicron Technology Corp Firm: PuHua & Associates Client: Phoenix Precision Technology Corporation • Tawainese firm Unimicron Technology has agreed to acquire Phoenix Precision Technology for US$362m, to expand market share

Value: Undisc

Firm: Freshfields Bruckhaus Deringer Client: Atlantis Resources Corporation Lead lawyers: Connie Carnabuci, Stuart Grider Firm: Eversheds Client: Statkraft Lead lawyers: Paul Lowe, Tom Ferguson • Atlantis Resources Corporation strategic collaboration with Statkraft, European renewable energy company, to develop tidal current electricity projects in Europe • Freshfields previously advised Morgan Stanley on sale of Current Resources to Atlantis Resources Corporation

| korea | ►► SK Telecom convertible notes offering Value: US$332m Firm: Cleary Gottlieb Steen & Hamilton Client: SK Telecom Firm: Kim & Chang Client: Bookrunners Firm: Yulchon Client: SK Telecom Firm: Davis Polk James Lin & Wardwell Davis Polk & Client: Lead Wardwell managers Lead lawyers: Eugene C Gregor, James Lin • Barclays Bank, Citigroup, Credit Suisse and Nomura International were joint bookrunners, and HSBC and SK Securities as joint lead managers of offering by SK Telecom of its 1.75% convertible notes due 2014 Asian Legal Business ISSUE 9.5

NEWS | deals >>

• Seoul-headquartered SK Telecom is Korean wireless telecommunications services provider

►► Your month at a glance Firm

Jurisdiction

Deal name

Allen & Gledhill

Indonesia/Thailand

PTT Group - Straits Asia stake acquisition

325 M&A

Amarchand & Mangaldas

India/US

Tech Mahindra - Satyam Computer Services acquisition

404 M&A

Bae Kim & Lee

India/Korea

CJ Home Shopping - Star Group JV

Chen & Lin

Taiwan/China

Unimicron Technology Corp - Phoenix Precision Technology Corp acquisition

362 M&A

Firm: Pillsbury Winthrop Client: Gmarket directors

Cleary Gottlieb Steen & Hamilton

Korea

SK Telecom convertible notes offering

332 Equity market

Firm: Orrick Client: Gmarket Lawyers: Mark J Lee, David Cho

Davis Polk & Wardwell

Korea

SK Telecom convertible notes offering

332 Equity market

Firm: Kim & Chang Client: eBay

Deacons

Indonesia/Thailand

PTT Group - Straits Asia stake acquisition

325 M&A

Drew & Napier

Singapore/China

Atlantis Resources Corporation - Statkraft JV

Undisc Corporate

Eversheds

Singapore/China

Atlantis Resources Corporation - Statkraft JV

Undisc Corporate

Freshfields Bruckhaus Deringer

Japan

Morgan Stanley Japan Securities Mitsubishi UFJ Securities JV

Undisc Investment funds

Singapore/China

Atlantis Resources Corporation - Statkraft JV

Undisc Corporate

China

Grand Point Investment - Tianjin Port Company stake acquisition

1,800 M&A

Global Law Office

China

Grand Point Investment - Tianjin Port Company stake acquisition

1,800 M&A

Hwang Mok Park

Korea/US

eBay - Gmarket acquisition

1,000 M&A

Jones Day

India/US

Tech Mahindra - Satyam Computer Services acquisition

404 M&A

Kim & Chang

Korea

SK Telecom convertible notes offering

332 Equity market

Korea/US

eBay - Gmarket acquisition

1000 M&A 1,800 M&A

| KOREA | ►► eBay - Gmarket acquisition Value: US$1.2bn

Firm: Hwang Mok Park Client: Gmarket directors Lead lawyers: Brendon Carr, Doil Son

• eBay to acquire 100% of Gmarket, Korea’s leading internet trader, commencing cash tender offer to purchase shares at US$24 per share • eBay to combine Gmarket with its Korean subsidiary, Internet Auction Co, to double its sales in Korea • Acquisition will help eBay push into Japan and across Asia over the next six to 12 months

| INDIA | ►► Tech Mahindra - Satyam Computer Services acquisition Value: US$404m

Value (US$m)

Deal type

27 Media, FDI

Firm: Amarchand Mangaldas Client: Satyam Computer Services

K&L Gates

China

Firm: Latham & Watkins Client: Satyam Computer Services Lead lawyer: John Huber

Grand Point Investment - Tianjin Port Company stake acquisition

Latham & Watkins

India/US

Tech Mahindra - Satyam Computer Services acquisition

Firm: Jones Day Client: Tech Mahindra Lead lawyers: Peter Izanec, Robert Profusek, Tom Smith

Orrick

Korea/US

eBay - Gmarket acquisition

P&A Law Offices

India/US

Tech Mahindra - Satyam Computer Services acquisition

Firm: P&A Law Offices Client: Tech Mahindra Lead lawyer: Anand S Pathak

Pillsbury Winthrop

Korea/US

eBay - Gmarket acquisition

PuHua & Associates

Taiwan/China

Unimicron Technology Corp - Phoenix Precision Technology Corp acquisition

362 M&A

Shook Lin & Bok Singapore

Indonesia/Thailand

PTT Group - Straits Asia stake acquisition

325 M&A

• UBS Securities India as financial advisor for TM, Goldman Sachs (India) Securities and Avendus Advisors for Satyam

Sullivan & Cromwell

Japan

Morgan Stanley Japan Securities Mitsubishi UFJ Securities JV

WongPartnership

Indonesia/Thailand

PTT Group - Straits Asia stake acquisition

325 M&A

• Follows ex-chairman Ramalinga Raju’s admittance to board after being accused of falsifying company accounts

Yulchon

Korea

SK Telecom convertible notes offering

332 Equity market

• Tech Mahindra Limited to acquire 51% stake in Satyam Computer Services at INR58 per share

www.legalbusinessonline.com

404 M&A 1,000 M&A 404 M&A 1,000 M&A

Undisc Investment funds

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

Please contact

alb@keymedia.com.au

61 2 8437 4700

7

NEWS | analysis >>

ANALYSIS

Strategic M&A beckons for

Asian financial sector A recent survey has shown that despite the downturn many companies are still expecting expansion – albeit in a very different way to previous years

N

o sector of the world economy has been harder hit by the global financial crisis than the financial services sector (FSS). And while Asia is yet to see any of its FSS heavyweights go the way of Lehman Brothers, Freddie Mac or Fannie May, that’s not to say they aren’t experiencing some serious discomfort.

But, as the results of a recent study conducted by PricewaterhouseCoopers (PwC) and Economist Intelligence Unit show, as much as financial institutions in the region are looking to sure up their current operations, they are also looking to expand by engaging in strategic M&A in the year ahead.

However, this is not the same type of financial services M&A that has occurred in the past – this time around it will be smaller and faster, target different sectors and locations, and will be driven by different imperatives.

The task confronting M&A lawyers who want a piece of this action is correspondingly more complex.

Expanding in the downturn

According to the survey, 42% of all financial services respondents said 8

Asian Legal Business ISSUE 9.5

NEWS | analysis >>

their company plans to make an acquisition in the year ahead. By jurisdiction, Taiwan and China claimed to be the most acquisition-hungry, with 70% and 68% of respondents respectively saying they would be looking to pick off cheap assets both domestically and overseas in the year ahead. Respondents in Japan and Hong Kong, however, noted that they were only 25% and 22% likely to look to strategic acquisitions this year.

Meanwhile, respondents in Australia and China are both actively looking to take advantage of opportunities to grow their business (both 63%), while those in Singapore (37%) and Japan (26%) seem to be more inclined to sit on the sidelines until calm returns to the economic landscape.

Somewhat surprisingly, only 22% of survey participants said their companies had frozen all investment.

Rather, expansion was cited by 48% of respondents as the key to their business strategy, with more than a third of respondents saying that they would be looking to enter into new markets or business lines.

Asia: strong financials but caution needed

For many, statistics such as these confirm the innate strength of Asia’s domestic financial services sector – most boast impressive balance sheets and the ability to effect such strategic acquisitions. But according to PwC partners Christopher Chan and Matthew Phillips, we shouldn’t expect a flurry of outbound activity in the sector just yet. For although Asia’s banks and financial institutions are in a stronger position to make acquisitions abroad than their www.legalbusinessonline.com

counterparts in the US or Europe, the same problems apply to financial services M&A as to M&A in other sectors: namely forex fluctuations and difficulties in valuing assets.

“Domestic Asian institutions are expected to dominate M&A activity in the region as foreign institutions consolidate and even withdraw,” Phillips says.

But according to Chan a number of factors will limit activity. “[Hurdles to M&A in the region include] problems in home markets and recent currency movements [which] make investment outside their home markets comparatively more expensive,” he says, noting that, in addition, almost half of all respondents identified difficulty in valuing assets in the current environment as the principal barrier to undertaking M&A deals in Asia. A lack of clarity on the financial position of many institutions was cited as the most significant obstacle in this regard, as was continued market volatility.

Smaller deals, newer players

Phillips says the deals that do come to fruition will almost certainly be smaller, with more activity from China and other emerging markets in the region. “I now expect to see an increased number of smaller deals to build share in underweight markets

or segments, rather than the gamechanging deals that one might have expected at the beginning of the crisis, as western players retreat,” he says. “While activity from China has been low, we are seeing some signs of renewed confidence and I would not be surprised to see the resumption of outbound deals by Chinese institutions within a matter of months.”

Companies in China’s financial services sector had previously been some of the most acquisitive in the region. After cleaning up their balance sheets and taking on foreign investors, many conducted IPOs and followed them with one of the largest foreign buying sprees on record. Some of the more notable deals were China Merchant Bank’s takeover of Hong Kong bank Wing Lung for US$4.6bn, ICBC’s US$5.5bn acquisition of 20% of the shares in Standard Bank and Minsheng Bank’s purchase of up to 20% of shares in US bank UCBH Holdings.

On the inbound side, both China and India have fallen down the pecking order as favoured destinations for financia services M&A. Only 12% of respondents expected to do a deal in China in the coming year while only 8% were looking to India for strategic acquisitions. Indonesia, meanwhile was set to become the most popular, according to 18% of respondents.

“Domestic Asian institutions are expected to dominate M&A activity in the region as foreign institutions consolidate and even withdraw” Matthew Phillips, PricewaterhouseCoopers 9

NEWS | analysis >>

ANALYSIS Where lawyers fit into the picture

Even so, closing such deals is expected to become even more arduous, not least because more than a third of respondents said they would be targeting distressed assets both at home and abroad.

The task confronting lawyers who want to pick up their share of the work emanating from this sector is clear. The deals they work on will need to be closed in tighter timeframes and with more attention paid to making transactions bankruptcy-proof. In addition, lawyers can expect much more of their time to be occupied doing due diligence, something nearly three-quarters of

“[Hurdles to M&A in the region include] problems in home markets and recent currency movements” Christopher Chan, PwC respondents identified as something they would be doing more ‘robustly’ than perhaps was the case in the past.

Similarly, regulatory change, especially that aimed squarely at the financial services sector, will become the focus of attention, with many companies waiting to see how this pans out before embarking on their strategic expansion plans. “There is, in particular, still a degree of uncertainty about the future in terms of the impact of tightened regulation,” Phillips says. “Respondents remain relatively neutral as to the areas that would have the most impact, but two-thirds point to further and more timely disclosures of market, credit and liquidity exposures and tighter liquidity management. Time will tell if these alone will be sufficient to offset the procyclical bias of the past or whether more radical steps will be required.”

Either way, M&A lawyers can expect to see a lot less of their time spent being deal makers and a lot more of it spent being regulatory advisors – a trend that is already noticeable in M&A practices across the region. ALB 10

Infrastructure: key to riding out recession Asian infrastructure funds might just be recession proof. Despite gathering storm clouds on the economic horizon, they continue to exhibit signs of healthy growth – and there is plenty more to come

T

he Asian funds industry may have been decimated by the global financial crisis over the past 12 months but some pockets of the sector are still showing very sound vital signs. Asian infrastructure funds may just be the industry’s beacon in the current storm.

Good fundamentals

The past 12 months in particular have been strong for private equity funds raising capital for investment into Asia and this year is expected to be no different, according to John Sullivan, a partner with Mallesons Stephen Jaques, who says that wholesale infrastructure funds with well credentialed sponsors will still proceed.

“Although market condition are challenging, the underlying demand and supply factors encouraging the establishment of infrastructure funds for emerging Asian economies

remain,” he says. For example, while the IMF recently revised down its forecasts, it still predicts that both the Indian and Chinese economies will grow by 5% and 7% respectively this year with both likely to increase further still in 2010.

It is no secret that both countries are experiencing rapid urbanisation and population growth, and the governments there realise infrastructure development is both necessary and inextricably linked to further economic growth.

“Infrastructure investment requirements for India alone over the next five years are expected to exceed US$500bn. Given the pressures on government spending, this is likely to translate into a significant need for private sector funding,” Sullivan says, adding that he expects the recent spate of stimulus packages to further magnify this opportunity.

Asian Legal Business ISSUE 9.5

NEWS | analysis >>

Other bright spots

Sullivan says that superannuation and pension systems still represent something of a sound investment in the current climate, with most still generating money for investment.

“There remains appetite among institutional investors for wholesale unlisted exposure to alternative assets like infrastructure, especially those offering strong returns over the medium term. Unlisted infrastructure funds have not been affected as badly as listed funds. Certainly at the investment level, current markets offer good buying opportunities for funds because the prices are considered favourable.”

Sullivan adds that funds for Asian infrastructure have tended to follow a private equity model whereby they are often established using one or more hub jurisdictions – he points to Mauritius as a particular popular hub for investment into India.

“The main ‘regulation’ of the fund is often contractual, with a suite of documents governed by an internationally accepted legal regime – most commonly English law,” he says. www.legalbusinessonline.com

Further regulation

In this instance, investments which follow such a model have often attracted the ire of those who claim that the level of private equity regulation is low.

John Sullivan “This sentiment Mallesons may have prompted some of the recent calls for greater regulation of private equity funds but it is not entirely accurate in this context,” Sullivan says. “Here, there is typically a range of securities, licensing, foreign investment and tax laws in the fund, target and investor jurisdictions which need to be navigated.” Nonetheless, many predict that one of the more immediate consequences of the global financial crisis will be increased regulation in this area.

However, we shouldn’t expect an immediate run to this area. According to Sullivan, current market conditions mean that sponsors will face tough competition for would-be investors and they may be best served by paying closer attention to individual investor needs.

“Although market conditions are challenging, the underlying demand and supply factors encouraging the establishment of infrastructure funds for emerging Asian economies remain” John Sullivan, Mallesons “Market conditions mean sponsors face considerable competition for investors. In the current environment, investors are focusing on well credentialled sponsors and their requirements are evolving. Devoting time to anticipating likely investor questions and needs will be time well spent by potential sponsors,” he says. ALB 11

NEWS | analysis >>

ANALYSIS

Indian firms take carpe diem approach to downturn Leading firms on the Subcontinent have seen an increasing number of accomplished lawyers looking towards them as international firms struggle in their home markets

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aw firms in India are reaping the benefits of the contracting legal market abroad by recruiting top talent from major international firms.

The trend has emerged as new data reveals the US legal industry shed almost 3,000 jobs in March alone, while, at the same time, Indian lawyers who joined UK firms during boom periods are now being sent home.

India firms such as Khaitan & Co, Amarchand & Mangaldas and Nishith Desai Associates (NDA) are either in the process of recruiting or have recently boosted their numbers with significant hires in recent months.

Vivek Kathpalia, a partner at NDA, says his firm has received several enquiries from lawyers overseas, particularly Indians who normally seek positions abroad after completing their LLM degrees.

“We’ve received a number of enquiries and we’re very excited with this development,” Kathpalia says.

“We’ve responded positively and look forward to them joining us soon.”

Delhi-based Khaitan & Co has also received a significant boost by appointing former Freshfields senior associate Bharat Anand. He had been with the Magic Circle firm since 2001, based in the London office.

Rabindra Jhunjhunwala, a partner at the firm, says that, as economic conditions deteriorate overseas, both Indian and foreign lawyers are looking to India as the country’s influence groqws, and it emerges as a significant legal market.

“The economic environment may have started a trend, but more importantly, I believe, those that come here, establish themselves and identify those firms that will be the most sought after,” he says. “There will be one set of lawyers who arrive here with the foreign firms, and another set of lawyers who, after having seen the [growth], would want to join Indian law firms who have an alliance with foreign firms.”

Last year, Khaitan & Co made headlines after announcing it had appointed lawyers from an international firm.

“I think we started the trend in September last year,” Jhunjhunwala says. “We made a number of hires from Ashurst, first the firm’s India group head [Murali Neelakantan] and then… other corporate lawyers.”

NDA, which has offices in both India and the US, recently hosted a group of Harvard law interns. “They spent time with us in Mumbai and it was an enriching experience both

“The economic crisis may actually be a catalyst for that overall trend, but the growth in the Indian economy will [also] increase this flow of talent” Vivek K athpalia, NDA

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Asian Legal Business ISSUE 9.5

NEWS | analysis >>

ANALYSIS

Restructure on the horizon for them and for us,” Kathpalia says. “The economic crisis may actually be a catalyst for that overall trend, but the growth in the Indian economy will [also] increase this flow of talent.”

The hiring trend seems to be a two-way movement. While Indian firms are hiring top overseas talent, it seems international firms are also scouting India’s universities for graduates. Firms such as Clifford Chance, Allen & Overy, Linklaters, and Herbert Smith in early April were on the hunt for fresh talent, with the National Law School of India University (NLSIU) placing at least 18 students to the firms. Norton Rose and Ashurst were also reportedly hiring for the first time from an Indian campus.

International firms are accelerating efforts to capture a slice of the Indian economy as it fares relatively better in the downturn.

US firm Morris, Manning & Martin has recently joined the long list of firms to have expressed interest in the market. “We want to forge US-Indian business and technology alliances that will help both our clients and our region’s economy as a whole,” says the firm’s technology practice head, John Yates. ALB

www.legalbusinessonline.com

Firms working in the Middle East face impending change as the competition for clients continues to heat up

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iscally conscious clients may cause firms in the Middle East this year to restructure practices and implement changes such as alternative billing methods and to shift their focus to other jurisdictions.

Lisa Hart, CEO of research firm Acritas, says the economic crisis will lead more regional law firms to restructure practices. “Legal buyers from the Gulf region feel that as a result of current economic conditions… there will be increased pressure on firms to reduce costs and provide transparency of fees. Firms will need to streamline and make redundancies in order to survive.”

According to recent data from Acritas, 50% of legal industry clients in the Gulf region expected their legal spending in oil & gas-related practices to decrease, but this may be offset by increases in the real estate, telecommunications & technology practices, as more than 40% of those industries’ clients anticipated their external legal spending to rise.

Clients also favoured fixed legal fees (46% of clients), compared to the 23% who preferred hourly rates.

The positive news for Gulf-based law firms is that overall legal spending is expected to rise by 7%.

However, this is a staggering drop from the 44% increase that was seen in 2008. Firms may also look to expand to Gulf jurisdictions that will witness the most legal spending – 47% of clients in Oman expected their spending to rise, followed by 39% in Bahrain and 36% in Dubai.

Surprisingly, while the majority of clients (81%) across the region believed that fees do not need to be reduced, the figure dropped in jurisdictions where law firms are more concentrated, such as Dubai.

And despite data showing Gulf lawyers were the highest paid in the world – with average hourly

rates topping those of the UK and US – competition between firms in the region will inevitably lead to reductions in hourly rates.

Hart said as the financial crisis tightens their legal spending, Middle East clients will expect the region’s firms to be more customer-friendly.

“Companies will undoubtedly be more careful with their legal spend – buyers are looking for firms to provide a better client service in addition to offering better value for money,” she says. “Renegotiating fees and billing methods is just one outcome buyers will be expecting and that law firms will need to implement.” ALB 13

NEWS | news >>

news in brief >> JV brings grapes of Rothschild to china French vineyard Domaines Baron de Rothschild (DBR) has invested in China, where wine consumption is expected to reach 1.1 billion bottles a year by 2011.

DBR, the parent company of Chateau Lafite, has established a joint venture with China International Trust and Investment Company (CITIC) to develop 25 hectares of vineyards on the Penglai Peninsula in Shandong province, an area regarded as one of the most promising for the industry in terms of both its climate and geological conditions.

Gide Loyrette Nouel (GLN) and Shanghai firm Llinks advised DBR on all legal aspects of the deal.

GLN’s team consisted of partner Guillaume RougierBrierre, and senior associates Guillaume Jeannet and Jiang Chuan.

india >>

lawyers lend hand on pro bono project More than 130 volunteers from 13 international law firms have spent a day participating in a pro bono activity with a difference in Hong Kong.

Members of the Hong Kong Legal Community Roundtable swapped their suits for overalls, working in teams on manual labour such as painting containers and walls, laying interior flooring, loading a container with household furniture and goods destined for those in need in Israel, and helping with administrative office work.

Allen & Overy initiated the event, and was joined by participating firms Baker & McKenzie, Clyde & Co, Davis Polk, Freshfields, Mallesons, Minter Ellison, Morrison & Foerster, Orrick, Pinsent Masons, Skadden, Weil, Gotshal & Manges, and White & Case. onshore firm makes offshore move UK-based firm Withers has made an unprecedented move, becoming the first onshore law firm to enter the offshore market after announcing it will open in the British Virgin Islands (BVI).

The office – which will provide a range of crossborder services including corporate and trust disputes, insolvency & restructuring, funds, and banking & finance – will be staffed by litigation partner Jeremy Scott and corporate partner John Greenwood.

“Our clients, our key contacts on the ground and the firm have all noticed an increase in litigious work in the BVI,” said Samantha Bradley, managing director of the firm’s Hong Kong office.

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Legal industry not ‘up for sale’ T

he Indian legal profession is not “up for sale”, and foreign law firms should not be allowed to enter the local industry, the president of the Society of Indian Law Firms (SILF) has said.

Lalit Bhasin, a lawyer from Bhasin & Co and president of SILF, in an opinion piece countered industry suggestions that India’s legal profession should be considered more of a business instead of simply a “noble profession”.

“If [the legal profession] is a business then it can be acquired, merged, amalgamated, taken over and sold to global players… the suggestion is totally unacceptable,” he said. “India and China offer good prospects – but the problem is that, in India, the legal profession is not a business and it is not up for sale.”

Instead, he suggested that foreign law firms should work only on a referral basis with Indian firms.

“An effective, transparent and clean referral arrangement is a far better alternative to allowing foreign law firms to open offices in India. So far, and by and large, [the] referral system has worked satisfactorily.”

Due to India’s WTO commitments, the liberalisation of the legal market is widely anticipated by both local and foreign industries.

“The general elections are coming up and until we have a new government there’s nothing new going to happen,” said Rabindra Jhunjhunwala, a partner at New Delhi-based Khaitan & Co. “There are two nationalist parties in India and we feel that, if one in particular of these comes to power, the market will begin to open up in the next year.”

Bhasin countered that liberalisation pressures come from regions where the growth of the legal sector is currently contracting, such as the UK. “The demand for opening the legal services sector in India does not come from Indian businesses or professionals or even foreign multinational companies.

Strangely, the demand comes from foreign lawyers and particularly those from the UK. It is obvious that the UK is witnessing a negative growth so far as the legal profession is concerned,” he said. ALB Asian Legal Business ISSUE 9.5

NEWS | news >>

asia >>

Linklaters unveils new regional chief L

inklaters has promoted Zili Shao, the firm’s current managing partner for Greater China, to Asia managing partner, succeeding Giles White, who is retiring from the partnership to take on the role as group general counsel at Jardine Matheson.

As the new Asia managing partner, effective as of 1 May, Shao joins the firm’s executive committee, which is responsible for the management of the firm. He will also relocate from Shanghai to Hong Kong.

Shao has been the managing partner of the firm’s practice in Greater China since 2003 and headed the firm’s China practice from 1998 to 2003, during which time he helped to establish the firm’s Beijing and Shanghai offices. He is a renowned dealmaker in the region and has advised on a number of major deals, including Carlyle’s acquisition of a stake in China Pacific Life and RBS’s US$100bn takeover of ABN AMRO.

Shao’s promotion is a reflection of the firm’s continued commitment to the China market and he noted that the Asia practice as a whole plays an increasingly important part in Linklaters’ global business.

“Asia has been a key growth market for the firm and it is increasingly important in today’s challenging economic climate,” Shao said. “The number of transactions between Asian countries, particularly China outbound investment into neighbouring countries, Zili Shao has become more active Linklaters and that has created many new business opportunities for us.”

Several other Magic and Silver Circle firms have also made adjustments to their Asia management structures. For example, Freshfields recently appointed London-based

partner Simon Marchant as its new Asia managing partner, a position which had previously been left vacant for three years, while Herbert Smith established two new Asia management positions designed to improve regional collaboration earlier this year.

Although he has significant experience, Shao said leaving his comfort zone for new challenges could be hard work. He will start his new role by studying more about other key markets in the region.

Another challenge for Shao during his four-year term will be finding the balance between servicing clients as well as focusing on managing the firm’s operations in Asia.

Following Shao’s appointment, the firm has made up three new partners and appointed four new counsel to the firm’s Asia offices. The firm now has 51 partners and more than 280 lawyers in its six offices across Asia. ALB

saudi arabia >>

Clyde partner sparks new Saudi alliance R

iyadh-based firm Abdulaziz A Al-Bosaily (AAB) has found a new partner in Clyde & Co, after breaking off its alliance with DLA Piper in January. The common thread is a former DLA Piper lawyer involved in establishing both the old and new alliances.

Management differences led to the termination of the six-month old partnership between AAB and DLA Piper earlier this year, with the latter losing the two lawyers who spearheaded the alliance – Oliver Agha and Peter Hodgins – in the same month. Hodgins moved to Clyde & Co and was involved in the firm’s new alliance with AAB. Hodgins confirmed the break up of DLA Piper’s alliance with AAB was caused by differing management views.

“Essentially it was a difference in

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opinion as to how that Saudi affiliation would run, how work would be dealt with, and really a different direction that Abdulaziz and the team working in Saudi Arabia wanted to go,” Hodgins said. “There were a number of departures

“My friendship with Abdulaziz has been a factor that has assisted in getting this affiliation on the ground” Peter hodgins, clyde & co around the time of the breakdown of the affiliation and my colleague Oliver Agha also left at the same time.”

Hodgins said his friendship with AAB’s Abdulaziz, formed during the alliance with DLA Piper, contributed to the formation of the new alliance.

“I used to work with Abdulaziz at DLA Piper both in Dubai and when he established his new office in Saudi Arabia. I introduced him to Clyde & Co and [although] he was known to the firm prior to my involvement, obviously my friendship with him has been a factor that has assisted in getting this affiliation on the ground,” he said.

The new partnership will rejuvenate AAB’s international market presence and broaden Clyde & Co’s regional reach, since foreign firms are not legally allowed to open a Saudi office alone. Clyde & Co will be making secondments to Riyadh in the next few months.

The firms will be working together to capture Saudi clients in corporate and Islamic finance-related transactions. ALB 15

NEWS | news >>

cambodia >>

Firms have to

uk report Firms still floundering in credit crunch UK firms are still feeling the pressure to cost cut in the midst of the global recession and even Magic Circle firms have been forced to implement salary freezes across offices.

Clifford Chance recently reversed salary bands for its junior lawyers, with all associate pay frozen at current levels until the end of the 2009-10 financial year.

The move to effectively reduce salary rates across the firm will affect all non-partner lawyers and support staff across the firm’s global network, with the exception of trainees, who will still have their pay increased come their second year.

The initiative follows in the footsteps of Slaughter and May, and Freshfields Bruckhaus Deringer, who made a similar announcement in February, reversing salary bands for all junior lawyers with the exception of trainees.

Lovells has also jumped on the pay freeze bandwagon and will keep salaries for all lawyers, support staff and legal PAs at this year’s levels.

Only trainees who qualified in March will not see a reduction in their salaries, with the level remaining at £65,000.

Double cutbacks at Eversheds Eversheds has asked forthcoming trainees to defer their start dates, while simultaneously slashing numbers from its real estate practice group in a bid to cut costs in the economic slowdown.

The firm has offered 31 out of 73 of its September 2009 trainees £5,000 to defer entry or be employed as a paid paralegal for one year and soon afterwards cut 10 lawyers from its real estate division.

Magic Circle firm Linklaters also recently asked 15 volunteers to defer their start dates from September 2009 and March 2010, saying it would like to “fine tune” its trainee intakes.

Cameron McKenna welcomes new partners CMS Cameron McKenna has added 17 new partners to its ranks the new ‘office partner’ salary rung.

The new office partner position, which allows the firm three levels of partnership, was introduced last month as part of a shake-up and represents the first stage of progression for senior associates, followed by a three-year salaried gateway level before partners join the equity.

The office partner role has been used in Eastern Europe for several years but this is the first year it has been introduced in the City.

Herbert Smith swings the axe Herbert Smith has announced it is to slash up to 84 members of its City office and will be reversing all associate pay bands, with salaries to remain at 2008-09 levels as an added cost-cutting measure.

The cuts will reportedly be made across the firm’s corporate and real estate practice, with fee earners, professional support lawyers and paralegals all likely to be affected. Secretarial roles across all fee-earning areas and up to 21 support staff will also be at risk.

Middle East-focused firm, Trowers & Hamlins also made 17 members of staff redundant recently – all in its London office. This is the third consultation at the firm and brings the total number of redundancies at the firm to 28, with the cuts affecting both feeearning and support departments.

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ambodia’s legal industry is struggling to serve the country’s growing business community and must adapt to survive, according to local lawyers.

Lay Vicheka, a Phnom Penh-based legal consultant at BNG – Advocates & Solicitors said that local lawyers must evolve in order to survive in the “increasingly complex legal marketplace”.

Vicheka said the country’s development has divided an older generation of lawyers previously unaffected by globalisation from a younger generation who will have to compete with international law firms.

“The previous generation has been quite isolated from the world, as Cambodia was not a member of ASEAN and WTO then, and business was also slower,” Vicheka said. “It will be very hard, working on cross-border transactions across the generations now, since the younger generation need to learn new laws and gain understanding of other cultures across the border. We need to adapt our services [in line with] the international firms.”

Marae Ciantar, a Phnom Penhbased partner at Allens Arthur Robinson, agrees that progress is needed in the legal industry. “The legal market is generally quite small

“The legal market is generally quite small here, and most firms are too small to support investment” marae ciantar, allens arthur robinson

 ROUNDUP

• Linklaters project finance partner Stuart Salt is set to take over as managing partner of Emerging Europe, Middle East and North Africa (EEMENA) following the retirement of Nick Eastwell from the role after 20 years of service • Eric Schwartz – Dewey & LeBoeuf’s Paris former managing partner – will soon join arbitration senior counsel James Castello of King & Spalding to launch the Atlanta-based firm’s first office in France • Norton Rose has offered staff a part-time option of working four-day weeks on 85% of pay, or taking a sabbatical of up to 12 weeks on 30% of pay • SJ Berwin has its eye on an international title. The firm recently set up an office in Dubai less than a month after launching in Hong Kong • Ashurst recently unveiled its 2009 promotions, revealing a decrease in partner promotions – only 10 lawyers were made up this year compared with 17 in 2008 • Berwin Leighton Paisner has welcomed seven to its partnership, with real estate the biggest beneficiary

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here, and most firms are too small to support investment and the kind of infrastructure and resources needed for lawyers,” he said. “Both externally and internally, to be able to support lawyers, there must be provisions such as training programs and knowledge management systems, and firms need to be of a certain size to meet those needs.”

Ciantar said that the development of the legal industry is restricted by the type of work coming in. “It’s very difficult to develop specialist skills as Asian Legal Business ISSUE 9.5

NEWS | news >>

adapt to survive, say lawyers

there just isn’t enough flow of work or progress of new laws to develop those specialist skills,” said Ciantar. “It’s complicated and limited by the state of development of the economy, but there have been some changes. The new bar president is working on a new training program and opportunities to share knowledge between lawyers, such as setting up law journals, and they’re certainly positive programs.”

According to Vicheka, legal work will likely move to bigger law firms as cross-border work in the country increases with Cambodia’s ASEAN membership. “Regional law firms are coming in and they are really much more competitive, not just in their understanding of the language of law, but of financial business operations and their technologies. The FTAs will increase the flow of business, but we’re not competitive enough to deal with cross-border contracts,” he said.

Despite the country’s steady growth, Ciantar said the lower amount of www.legalbusinessonline.com

work in Cambodia compared to other regions would limit competition.

“We’re the only international firm which has a presence in Cambodia, which is a position in the market we’re very happy with,” Ciantar said. “We don’t see that it’s particularly likely that anybody else is going to enter the market because we’re not sure that there’s room for more than one or two international firms on the ground.” ALB ►► Firms in Cambodia

Allens Arthur Robinson BNG – Advocates & Solicitors Bou Nou Ouk & Partners Clough Thuraisingham International Co Delaney & Co Indochina Limited DFDL Cambodia Dirksen Flipse Doran & Le HBS Law Firm & Consultants Law Offices of Benson Samay Pana Asean Law Office Poblador, Azada & Bucoy Sciaroni & Associates Stringfield & Cheng PLC

news in brief >> asia not affected by bakers’ redundancies Baker & McKenzie has confirmed that its Asia offices have not been affected by the firm’s latest round of redundancies.

The firm’s official statement announced that the redundancies will affect its ‘Global Services’.

The statement read: “Our management in North America and Global Services today has informed 38 attorneys and 86 paralegals and professional staff that their positions are being eliminated due to the economic downturn. These changes involve various practices, offices and Global Services departments in North America.”

The spokesperson reiterated that the latest redundancies only affected employees in its North American offices, even though the Global Services department is comprised of professional services staff across the firm’s worldwide offices.

This is the third round of redundancies for the firm, following January’s initial cut of eight associates in New York, and March’s slashing of about 85 jobs in London.

DUo catch tram transfer work Gide Loyrette Nouel (GLN) and Pinsent Masons have played pivotal roles in the transfer of Hong Kong’s iconic tramway which saw Veolia Transport China and Wharf (Holdings) enter into a 50-50 partnership to operate Hong Kong Tramways.

The iconic Hong Kong Tramways has been operating tram services in HK since 1904 and currently has a fleet of 163 tramcars. It boasts the world’s largest operational fleet of double-decker tramcars, which transport an average of 240,000 passengers per day.

Veolia Transport will be responsible for the operation and management of the network.

A GLN team led by Rebecca Silli acted for Veolia Transport on the deal while Peter Bullock led a Pinsents team responsible for the due diligence and Hong Kong aspects of the transaction.

brazilian firms continue push into china Brazilian firm Felsberg e Associados has been granted a license from the Ministry of Justice allowing its Shanghai office, which opened last year, to practice Brazilian law in the country. It firm becomes the third Latin American law firm to obtain a license in the country, after Noronha Advogados and Duarte Garcia, Caselli Guimaraes e Terra.

“This is a very important step forward, as many firms remain waiting for their license for more than two years and others even have their requests rejected,” said Rodrigo do Val Ferreira, who is responsible for the firm’s Shanghai office.

Before the licence was granted, most of the Chinarelated legal issues have been handled by the China desk in its Sao Paulo office.

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NEWS | news >>

asia >>

AAR chief says there will be no sackings

us report Fresh wave of layoffs hit US firms US firms continue to crumble under the weight of the credit crunch, with O’Melveny & Myers, Pillsbury Winthrop Shaw Pittman, King & Spalding, Paul, Hastings, Janofsky & Walker, New York-based Chadbourne & Parke and Venable all recently announcing layoffs across their offices in response to the economic instability.

O’Melveny & Myers bid farewell to 90 lawyers, including associates and counsel, and 110 staffers in March, while King & Spalding laid off 37 associates and counsel as well as 85 staff firmwide, and Pillsbury saw 55 lawyers and 100 staff lose their jobs.

Paul Hastings, Chadbourne & Parke and Venable also slashed numbers by 131, 25 and 64 employees respectively.

Bryan Cave hunts for London merger US firm Bryan Cave has revealed it is searching for a UK counterpart to expand its budding presence in London.

The firm launched in the UK in 1982, but is reportedly keen to enter into a merger with a London-headquartered firm as a way to develop its standing in the European legal market.

The UK merger will be one of many changes to develop this year. The firm announced job cuts totaling 134 in February, and has been working to revamp its restructuring and outsourcing and

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finance practices in the City following the hire of former Mourant chief executive Stephen Ball.

Redundancies comntinue at Bakers Baker & McKenzie has continued its slashing spree, recently making 38 associates and 86 support staff redundant in the US. The latest cuts come shortly after the firm initiated a second consultation in London, which is likely to lead to the loss of 85 jobs, including between 20 and 30 lawyers.

Six New York associates were already made redundant this year as the firm reviews its salary bill in response to the economic downturn.

Another US firm, Mayer Brown, also recently initiated a second round of job cuts, with 45 lawyers and 90 support across its US offices losing their jobs as a result of a review of its global operations.

Skadden loses lawyers to boutique Recent redundancies at Skadden, Arps, Slate, Meagher & Flom have reportedly prompted the departure of 11 of the US firm’s attorneys for new boutique BuckleySandler.

The Washington DC office of Skadden and the US offices of Gibson, Dunn & Crutcher both confirmed employee layoffs – 25 staff positions at Skadden’s DC office and 36 staff members across the nine US offices of Gibson, Dunn & Crutcher.

ROUNDUP • US firm McGuireWoods is to merge with the 36-lawyer firm of Grundberg Mocatta Rakison, gaining a London presence and adding to its 900 lawyers in 17 offices • Chicago firm Arnstein & Lehr has taken over seven-lawyer, Florida-based firm Fieldstone Shear & Denberg • Clifford Chance has made 24 transactional attorneys in New York redundant • Boston-based Edwards Angell Palmer & Dodge aid off approximately 25 lawyers and 35 staffers across six offices due to declining work • Jeffrey Stone and Peter Sacripanti will begin their roles as joint chairman of McDermott Will & Emery in January 2010, replacing incumbent chairman Harvey Freishtat who has held the position since 2003 • Linklaters recently hired UBS managing director Lewis Steinberg to co-head its US practice and head up its tax practice group • Chicago private equity partner Bert Krueger was recently nominated to succeed James Holzhauer as chairman of Mayer Brown. Holzhauer is stepping down after two years at the helm • Fried Frank Harris Shriver & Jacobson has confirmed it is to reduce its US workforce by a total of 99 people, losing 41 associates and 58 administrative staff

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oluntary redundancies and salary freezes at Australian firm Allens Arthur Robinson (AAR) are not a forerunner to forced layoffs, AAR boss Michael Rose has said.

Michael Rose “I’ve said it is not our Allens Arthur agenda to respond to Robinson the likely downturn by instituting a firm-wide redundancy program. The voluntary redundancy program has absolutely no targets in terms of numbers, positions or any specific roles in the firm. It is just one of the options being made available.”

Rose said the firm’s plans across Asia would vary. “Our response will most likely vary from office to office and country to country, depending on the nature of our practice, whether or not we have a joint venture and the impact of the downturn on the country concerned.” AAR is currently in a number of joint ventures with local firms across the region. In Singapore the firm is in a formal joint-law venture with TSMP Law Corporation, in Thailand it has an alliance with Siam Premier, while in Indonesia it is allied with Widyawan & Partners.

The steps being taken are all about maintaining growth in the long run, according to Rose, who cites the firm’s recent graduate intake as evidence of this trend. “We just took on 77 graduates last month and we have a pipeline running out for the next two years… The steps we are taking are positioning the firm for the long-term and inevitable recovery in the economy.”

However, Rose admitted that no firm was immune from one of the deepest recessions in living memory. “Our firm has been one of the strongest performers in the Australian legal market over the last year and in Asia we’ve seen good work in a number of our offices…

However, we have predicted, and been preparing for, a downturn in the legal services market,” he said. ALB Asian Legal Business ISSUE 9.5

NEWS | news >>

news in brief >>

fiji >>

Anger at ‘unlawful’ foreign appointments F

oreign lawyers are being appointed to ‘unlawful’ legal posts under Fiji’s new military regime, regional legal bodies have said.

After sacking the entire judiciary, Fiji’s military regime made new posts mid April, re-appointing seven out of nine magistrates. The appointments include New Zealand lawyer Christopher Pryde, who was sworn in again as solicitor-general.

However, law bodies have condemned the reappointments, which they deem to be illegal under Judicature decree.

The president of the Fiji Law Society (FLS) – who was detained on charges of sedition – said that the appointments were unlawful since the previous posts prior to the abrogation of the constitution were “proper”.

New Zealand’s Law Society head John Marshall urged all Kiwi lawyers to refuse any posts with the new regime. “My view is that the regime is unlawful and that it would be wrong for New Zealand lawyers to give support to that regime by taking appointment in a government office and particularly in position of a judge,” Marshall told ALB. “The regime is unlawful so any appointments it makes must also be unlawful.”

The debate intensified as Pryde hit back at criticism about his acceptance of the post, claiming that despite the current state of affairs, the judiciary must ensure stability for the people.

“It seems paradoxical for the NZ Law www.legalbusinessonline.com

Society president to say on the one hand that Fiji should be supported in its efforts to return to the rule of law as soon as possible, but on the other hand to say that NZ lawyers should not assist with that goal by accepting office,” Pryde said. “It is precisely at this time that Fiji needs good, competent lawyers to assist it and I am pleased that all NZ lawyers… have committed themselves to staying on and seeing the country through this difficult period.”

And Marshall partially agreed with this view. “I can see the argument for good people taking appointments as officials in Fiji on the basis that they would endeavour to ensure that the rule of law is upheld,” he said.

Glen Ferguson, president of legal organisation LAWASIA, said that while the independence of the courts may be questionable, there is nothing worse than Fiji falling into civil dispute, and for Fijians to lose faith in the legal system. “There seems to be no separation of powers, and from a local’s perspective, that’s very disturbing because if you don’t have faith in the judicial system I don’t know where you can any faith,” he said. “You just cannot have situations occurring like this because for stability in the whole region it’s very important that Fiji is strong too.

I think it’s very noble [of the legal bodies’ opinions] but at the end of the day, sanctions only hurt one group and that’s the people of Fiji.” ALB

Us firm in double office opening Mid-tier US firm Morris, Manning & Martin (MMM), has opened two offices in Greater China. The firm launched its Taipei and Beijing offices in early April, but until they are approved they will operate as business development centres.

The firm’s Taiwan practice is headed by US-based of counsel Raymond Ho, who joined from Hogan & Hartson. Asia practice partner Ming Jiang will reside at the new Beijing office to serve as its local administrator. “[China] is an integral part of our long-term strategic plan,” said the firm’s managing partner Robert Saudek.

“We view our approach as twofold: first assisting with intellectual property patent prosecution and potential litigation; and second, assisting with corporate and securities matters.”

The practice is primarily focused on representing Chinese, Taiwanese, and other Pacific-rim-based companies and institutions with their operations in the United States.

taiwanese to resolve chinese disputes A Taiwanese businessman has been appointed by a mainland Chinese court to resolve Taiwan-related legal disputes on the mainland.

Chen Long-Feng, a Taiwanese native with business interests in China’s Fujian province, will serve a twoyear period as a consultant in the Zhangzhou county court. The appointment is significant as it is may be the first of its kind, and is another attempt to bridge relations across the Straits.

Chen will act as a mediator in Taiwan-related business and civil cases in the local court, and although he reportedly has no formal legal background, the courts have approved Chen’s appointment due to his industry experience and knowledge.

“Mr Chen knows much about policies and laws in the mainland. He has a good reputation in local Taiwan business circles and is willing to work for the public,” said Hu Shaoyin, the Zhangzou court vice president.

All THE latest legal news

Keeping up to date with legal news has just become easier.

The ALB team now gives you the opportunity to read the current edition of ALB magazine online.

Each regional edition of ALB can be viewed online www.legalbusinessonline.com. Each week ALB legal news brings you the latest in industry updates to help keep you informed.

19

NEWS | news >>

Update >>

malaysia >>

Finance chance

International Tax UK Budget Update

T

he main UK Budget headlines from Chancellor Alistair Darling’s recent UK Budget are .

• From April 2010, a 50% Income Tax rate for those with taxable income over £150,000 will be put into effect.

• No UK personal allowance for those earning over GBP100,000.

• In effect the marginal UK Income Tax rate for those earning between GBP100,000 to GBP114,000 is 67% • The UK Trust rate of tax to increase to 50% from April 2010 • Tax relief for pension contributions restricted for those earning over £150,000, to 20% • Employers National Insurance increases to 11.5% from 5 April 2011; as previously announced.

• Increased ability to carry back Enterprise Investment Scheme (EIS) income tax relief • Extension to 3 year carry back for business losses up to £50,000 • First Year Allowances of 40% for capital expenditure • Tax breaks for Furnished Holiday Lettings (FHL) to be repealed from 2010/11 • VAT to return to 17.5% from 1 January 2010 • Stamp Duty Land Tax (SDLT) exemption for properties up to £175,000 to be extended until 31 December 2009 • Worldwide debt cap rules to begin for companies with accounting periods beginning on or after 1 January 2010 • Naming and shaming of persons who have evaded GBP25,000 of tax, and who have subsequently been assessed.

The shortfall, of GBP200B, between expected Government revenue and spending of GBP10,900 for every man, woman and child in the UK, will be made up from UK Government Gilt sales of GBP220B in the coming year.

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

M

alaysia will permit up to five foreign law firms to set up local offices as part of a partial liberalisation of its formerly restricted legal industry.

To promote the country as an Islamic finance hub, the Malaysian government has decided to allow up to five foreign law firms specialising in Islamic finance to set up local offices.

However, the firms will not be allowed to branch out into other practice areas, restricted to advise only on Islamic finance transactions.

In a move similar to the Singapore government’s recent QFLP licence grants, foreign firms’ applications will be judged on their “credibility” and the business plan of their Malaysian office.

“By permitting foreign law firms to set up on a stand-alone basis, there is no necessity for such firms to share or transfer any technology or knowledge to Malaysian practitioners,” said Ragunath Kesavan, the MBC’s president.

Kesavan also raised doubts as to whether the objective behind the liberalisation – to establish UAE >>

Debbie Annells

‘Rejuvenation’ leads to six U nited Arab Emirates (UAE) firm Hadef & Partners (previously known as Hadef Al Dhahiri & Associates) rebranded itself early last month in a move described by its managing partner, Sadiq Jafar, as necessary to make

20

Malaysia as Asia’s Islamic finance hub – would be achieved, since it is unlikely that the approved foreign firms will bring more clients and business to the country.

The announcements come as competition intensifies between Asian countries keen to capture market share in the booming Islamic finance market. According to Azmi Mohdi Ali, managing

it more recognisable to an international audience. Now it has cut six of its corporate finance lawyers and plans to shift a number of key partners between its Abu Dhabi and Dubai offices.

Jafar said that despite the move, the “rejuvenated and

Asian Legal Business ISSUE 9.5

NEWS | news >>

for foreign firms

Update >>

Financial Why investors do what they do?

Jump off the cliff

A

herd of sheep spring to mind? Lemmings perhaps, who alledgedly commit mass suicide when they migrate? Both animal classes illustrate to an extent the behaviour displayed by some human beings when they make investment decisions! Go with the flow; if everyone is doing it, it must be right. Follow the sheep ahead. Jump off the cliff. You get the point?

Everything is on sale

When stock markets crash and top quality stocks are ‘on sale’ investors hold-off waiting for the bottom, too scared to dip their toe in the water in case the water is boiling. However, good quality assets are now on sale.We’ve been investing, gradually, for months. Have you?

Time in the markets is the key, not timing

Several studies have shown that ‘time in’ the markets, rather than ‘timing’ is the key to success. At the end of the day no one has a crystal ball. Picking the absolute bottom of the market is pure luck. Averaging your investments by investing a bit at a time, rather than jumping in all at once, may be a sensible strategy. Investing too early (during the ‘trough’ period) is better than investing too late. If you miss the early stages of a bull market you will lose a large part of the total return.

Diversify, don’t dilute partner of Malaysian firm Azmi & Associates, Singapore’s recent launch of a global Islamic bond program indicated that it was fast catching up to Malaysia’s lead in the market. Ali said that Singapore had an advantage due to its better access to international customers and its accommodation of foreign law firms.

“In the near future, Malaysian law firms may need to play catch-up with Singapore lawyers as fast as possible,” Ali said.

“The Islamic banking gap between Malaysia and Singapore is narrowing and the position that Malaysia enjoys as an international Islamic financial hub may soon be achieved by Singapore.” ALB

Diversification is a sensible strategy. Don’t invest too much in one stock or with one fund manager. Conversely, spreading your investments thinly simply achieves dilution – which means that if one investment doubles or triples in value, your portfolio as a whole hardly benefits because you have such a small amount, proportionately, invested in that one investment.

Pay attention to risks

Don’t gamble unless you can afford to lose. Don’t lock your money up unless you can afford to leave it invested for much longer than you originally anticipated. Preferrably, don’t lock your money up at all. Match your investments with your resources and your risk appetite and once invested keep a regular eye on your portfolio. Finally, if it sounds too good to be true, it probably is.

Conclusion

lawyers losing their jobs modernised” firm will look to continue to grow in the region. “We’ve restructured in various practice groups.

For example, some people have moved to our Abu Dhabi office, which at the moment is much more dynamic. This is mainly www.legalbusinessonline.com

in the banking & finance team. We expect to see growth in our dispute resolution group, financial and restructuring.”

Jafar was also quick to point out that the firm had hired 12 new lawyers over the past six months. ALB

Investing is not rocket science. But most people allow emotion to sway their decisions. And realistically, who has the time to watch the markets, to keep up to date with economic news, politics etc. A few airline pilots perhaps but that’s about it! Consequently, you’re probably better off leaving money management to money managers.

For sensible advice on investing your money contact me now.

David R. Bojan, Managing Director Horwath Financial Services Ltd. Tel: (852) 2511 8337 Fax: (852) 2802 7613 Email: drb@hfs.com.hk | Website: www.hfs.com.hk

David R. Bojan

21

NEWS | news >>

Update >>

global >>

Intellectual Property Singapore Court of Appeal Considers Revocation and Invalidation Provisions in the Trade Marks Act

I

n the recent case of Wing Joo Loong Ginseng Hong (Singapore) Co Pte Ltd v Qinghai Xinyuan Foreign Trade Co Ltd and Another and Another Appeal [2009] SGCA 9, the Singapore Court of Appeal had to decide on various issues surrounding trade mark revocation and invalidation.

The Appellant argued that a “Rooster” device trade mark registered for inter alia, cordyceps (the “Rooster” Mark) was liable for revocation on grounds that it had become a common name in the trade due to the registered proprietor’s acts or inactivity (section 22(1)(c) of the Singapore Trade Marks Act). The Court of Appeal found that there was no evidence to show that the word “Rooster” has become commonly used for denoting cordyceps from the People’s Republic of China (PRC), regardless if the cordyceps bear the Rooster Mark. Hence, the Appellant had not discharged its burden of showing that the “Rooster” Mark was a generic mark in the trade for cordyceps from the PRC. The Court further expounded that it is insufficient for the Appellant to show that the “Rooster” Mark was a popular mark used to denote cordyceps from the PRC. “The mere fact that a mark is popular or even the only brand used to market a particular product or service does not ipso facto render the mark a generic mark and thus undeserving of protection.” (at [65]) Despite its finding that the basis for revocation under section 22(1)(c) was not made out, the Court went on to consider whether the Registrar of Trade Marks and the Court, in trade mark revocation and invalidation proceedings, have a residual discretion not to revoke or invalidate the registration of a registered trade mark even though one or more of the grounds for revocation or the grounds for invalidation have been made out. The Court of Appeal overruled the lower court’s finding that discretion was conferred by the word “may” in the relevant provisions in the Trade Mark Act. It opined that the correct interpretation of the word “may” in the relevant provisions does not confer any such residual discretion on the part of the Registrar or Court.

The Court of Appeal’s views on the correct interpretation of “may” in the relevant revocation and invalidation provisions in the Trade marks Act is significant as this is the first time a final appellate court has the opportunity to consider the issue.

Joyce Ang, Associate Intellectual Property and Technology Group ATMD Bird & Bird LLP 39 Robinson Road #07-01, Robinson Point, Singapore 068911 Phone +65 6428 9422 Email: joyce.ang@twobirds.com

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Joyce Ang

Four-day week L

aw firms are adopting a four-day week to avoid redundancies and as alternatives in firm cost cutting measures.

Norton Rose has recently received a 96% vote from lawyers in support of its new Flexible Working Scheme, which will allow staff to either adopt a four-day week on 85% of their salary, or take paid leave for up to 12 weeks at 30% of base salary.

The scheme began on 1 May and includes partner as well as salaried staff.

The firm’s chief executive Peter Martyr said that the aim of the scheme was to “protect jobs”.

UK-based firms, Ashurst and Simmons & Simmons are also known to have

invited lawyers to adopt the reduced-hours for reduced-pay alternative.

Top-tier Australian firms such as Mallesons Stephen Jacques, Minter Ellison and Freehills said that flexible working schemes have been options for their lawyers for some time now, but the financial crisis has nevertheless prompted a closer consideration of the schemes.

“We’re continuing to pay very close attention to our

“[The schemes] are policies we’ve had in place for a few years now; it’s not a response to the crisis” Spokesman, mallesons stephen jacques

korea >>

Partial liberalisation puts mergers back on agenda A

s Korea’s legal market edges closer to liberalisation, domestic law firms are finding that mergers are a viable way to bulk up and remain competitive.

Korean law firm Hwang Mok Park has agreed to merge with boutique litigation practice Hanseung Law Firm. The merged firm, which will retain the name Hwang Mok Park, will become Korea’s eighth largest law firm, boasting around 120 Korean lawyers, foreign legal consultants, patent attorneys, CPAs, tax accountants and custom brokers.

Hanseung, which will contribute 35 lawyers of its own to the union, specialises in lawsuits, mediation and corporate affairs and has a number of high-profile lawyers in its ranks, including former heads of the patent, family and administrative courts and a former justice of the constitutional court.

“This acquisition of Hanseung puts us into the top tier of law firms in Korea,” said the firm’s senior partner Hwang Ju-myung. “By virtue of this merger, our corporate clients will enjoy even stronger litigation services, in the civil, criminal, family and administrative areas.” ALB Asian Legal Business ISSUE 9.5

NEWS | news >>

gets thumbs up cost base and discretionary spending, as part of the normal budget planning process to…

John Weber preserve jobs,” Minter Ellison said Minter Ellison’s Chief Executive Partner, John Weber. “We’re also encouraging staff to consider flexible work options where their workloads have changed because of the market downturn.”

A firm spokesman at Mallesons said the firm was implementing flexible work policies that have been in place for a number of years. “[The schemes] are policies we’ve had in place for a few years now; it’s not

a response to the crisis,” he said. “There haven’t been any changes to the policy – our only response in terms of the current environment has been that we’ve not replaced contracts where they’ve expired.”

A Freehills spokesman said that due to the downturn, the firm will be more closely managing existing arrangements – such as part-time work, varied hours, job sharing, and working from home.

“Because of the financial crisis and requests from staff for more flexible work options, we’ve extended the flexible working options, like career breaks and purchased extra leave,” the spokesman said. ALB

UAE >>

Dubai latest office to be hit by DLA layoffs R

edundancies at DLA Piper have now reached its Middle East operations, with the firm announcing that eight associates have been cut from the Dubai office.

The redundancies will affect the corporate, finance and projects practices, amounting to an 8% cut of its fee earners.

Middle East managing partner David Church told ALB the firm had been working on methods to minimise the job losses but the cuts were inevitable.

“We discussed a range of alternative solutions with our people, many of which have been implemented, such as reducing the number of hours worked, transfers to other offices in the region [Abu Dhabi, Doha and Kuwait] where there is more demand, sabbaticals and secondments, and offering volunteer leave to enable people to assist on CSR projects around the world,” Church said.

Church added the redundancies were caused by waning client demand in the region. “There has been a reduction in the demand for legal services in Dubai,” he said.

The news follows the firm’s announcement in March of 54 lay offs affecting its Asia offices, and a number of other. ALB

www.legalbusinessonline.com

Update >>

International Arbitration Supportive and Supervisory Powers of the Singapore High Court for International Arbitrations seated in Singapore

S

ingapore’s status as a premier arbitration centre is robustly supported not only by its judicial philosophy and the presence of top arbitral institutions, but also its legislative framework for the conduct of international arbitrations.

International arbitrations are governed principally by the International Arbitration Act (the “IAA)” and the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), which is implemented by the IAA on an “optout” basis.

As noted in the second reading speech to the International Arbitration Bill, the IAA seeks to “facilitate arbitrations”. To this end, the Singapore High Court has been conferred an array of powers to assist the arbitral tribunal and parties in arbitration. The more significant supportive and supervisory powers of the Singapore High Court are:

Key supportive powers include:

• staying court proceedings instituted by a party to an arbitration agreement against another party to the arbitration agreement in respect of any matter which is the subject of that arbitration agreement. This includes the power to make any interim or supplementary orders to preserve the parties’ rights in relation to any property which is the subject of the dispute or to retain previously arrested property as security for the satisfaction of any arbitral award (ss 6 and 7 of the IAA); • making orders for security for costs, discovery of documents, interrogatories, obtaining evidence by affidavit, preserving or selling property and assets, securing the amount in dispute and interim injunctions or other interim measures (s 12(7) of the IAA); and • making orders to compel the attendance of witnesses (including prisoners) in Singapore before the arbitral tribunal, e.g. by the issuance of subpoenas to testify or subpoenas to produce documents (ss 13 and 14 of the IAA).

Key supervisory powers include:

• setting aside an arbitral award on any ground listed in s 24 of the IAA or Art 34(2) of the Model Law; • deciding on any challenge to an arbitrator on grounds of partiality or lack of independence or qualifications (Art 13(3) of the Model Law); • deciding on the termination of an arbitrator’s mandate if he becomes unable to to perform his functions or fails to act without undue delay, unless the arbitrator withdraws from office or the parties agree on the termination of the mandate (Art 14(1) of the Model Law); and • deciding whether the arbitral tribunal has jurisdiction over a matter, if the arbitral tribunal rules as a preliminary question that it does (Art 16(3) of the Model Law).

In line with the legislative intent behind the IAA, judicial intervention to exercise these powers is kept to a minimum.

Mr Christopher Anand Daniel is a Director of Drew & Napier’s International Arbitration Group. His areas of practice include international commercial arbitration, commercial and corporate litigation, banking litigation, and public law litigation. Christopher has successfully argued at all levels of the Singapore courts, and before international arbitral tribunals. He can be contacted at +65 6531 2760, or christopher.daniel@drewnapier.com.

Christopher Anand Daniel

23

NEWS | appointments >>

Gebran Majdalany

appointments ►► LATERAL HIRES Name

Leaving

Going to

Practice

Location

Donald Francoeur

Gebran Majdalany

Norton Rose

Banking & finance

Riyadh

Todd Bissett

O’Melveny & Myers

Sheppard, Mullin

Corporate

Shanghai

Frank Marinaro

Merrill Lynch

Loeb & Loeb

Corporate

Beijing

Zhou Jun

RayYin & Partners

Private equity

Shenzhen

Zhang Jiachun

China National Pharmaceutical Industry Corporation

East Associates

Corporate

Beijing

Jessica Fei

WongPartnership

Fulbright & Jaworski

Dispute resolution

Hong Kong

Qi Bin

Run Ming

Shimin law office

Japan practice

Shanghai

Kathy Yang

O’Melveny & Myers

Run Ming

Corporate, finance

Beijing

Charles Liang

Alstom

Run Ming

Corporate, FDI

Beijing

Akio Yamada

Japan Fair Trade Commission

Jones Day

Antitrust and competition law

Tokyo

Prashanth Sabeshan

Freehills

Norton Rose

Energy & resources

Singapore

Fraser Hern

Allen & Overy

Walkers

Insolvency & restructuring

Hong Kong

Ray Wearmouth

Harney Westwood & Riegels

Ogier

Corporate

British Virgin Islands

John Inge

Hogan & Hartson

Orrick

IP

Tokyo

Bharat Anand

Freshfields

Khaitan

Corporate

New Delhi

►► Promotions Firm

Partner

From

To

Fulbright & Jaworski

Richard Hill

London

Hong Kong

Fulbright & Jaworski

Stefan Ricketts

London

Hong Kong

Clifford Chance

Simon Cooke

London

Hong Kong

Simmons & Simmons

Damon Le Maitre-George

China

London

Simmons & Simmons

Charles Mayo

Hong Kong

London

Simmons & Simmons

Jane Newman

Shanghai

London

White & Case

Sebastian Buss

London

Singapore

►► Promotions

24

Name

Firm

Promotion

Practice

Location

Umesh Kumar

Linklaters

Partner

Financial markets

Hong Kong

Jiro Toyokawa

Linklaters

Partner

Corporate transactions

Tokyo

Samantha Thompson

Linklaters

Partner

Corporate transactions

Hong Kong

Wilson Ang

Linklaters

Counsel

Litigation

Hong Kong

Rosamund Barker

Linklaters

Counsel

Capital markets

Hong Kong

Howard Lam

Linklaters

Counsel

Banking

Hong Kong

Sophie Mathur

Linklaters

Counsel

Corporate, M&A

Singapore

Jiannan Zhang

Cadwalader

Partner

Corporate

Beijing

Zili Shao

Linklaters

Asia managing partner

Corporate

Hong Kong

Norton Rose

Norton Rose boosts Riyadh office Norton Rose has appointed Donald Francoeur as a senior counsel to its Riyadh banking & finance practice.

Francoeur joins from Qatari firm Gebran Majdalany, and has also worked with Canada-based firm Fraser Milner Casgrain and in Stikeman Elliot's Montreal office.

Norton Rose hopes the appointment will assist the firm in its regional growth strategy.

"Saudi Arabia's plans for the development of its infrastructure, privatisation, the creation of public companies and the investment of some of its wealth outside the country are… enormous,” said Stephen Parish, the firm's global head of banking.

Sheppard Mullin

Sheppard Mullin strengthens China-US practice Sheppard, Mullin has added partner Todd Bissett to the firm’s Shanghai corporate practice.

Bissett, a private equity and mid-market M&A specialist, will split his time between Shanghai and Silicon Valley, to strengthen the link between the two US and China offices.

Merrill Lynch

Loeb & Loeb

Loeb & Loeb makes Beijing corporate move Loeb & Loeb has appointed the former first vice president of Merrill Lynch, Frank Marinaro, as a partner in the corporate department.

Marinaro is to head the soon to be launched office in Beijing, where he will become the firm’s chief representative in China.

Frank Marinaro

RayYin & Partners

New partner for RayYin & Partners RayYin & Partners has announced that Zhou Jun has joined as a partner in Shenzhen. “[The] Shanghai office will serve as a base for works focused on both domestic and international clients,” said Zhou Yi, founder and chairman of the management committee at RayYin. “Foreign investment, trusts, real estate and intellectual property protection are the main areas of advice we provide for foreign clients.”

Hogan & Hartson

Orrick

Orrick boosts IP offering with lateral hire Orrick has strengthened its Tokyo IP offering after announcing John Inge will join the firm as an of counsel.

Inge, who joins the firm from the Tokyo office of Hogan & Hartson, has acted for a number of high-profile Japanese corporates, primarily in the electronics and semiconductor fields, in patent litigation cases and other IP matters.

Asian Legal Business ISSUE 9.5

NEWS | appointments >>

Linklaters

Linklaters embarks on promotions drive Linklaters has made up three new partners and appointed four new counsel to the firm’s Asia offices.

The firm has elevated three Asia-based lawyers to partnership – financial markets lawyer Umesh Kumar in Hong Kong, as well as corporate transactions attorneys Jiro Toyokawa in Tokyo and Samantha Thompson in Hong Kong.

Additionally, the firm has also elected 18 new counsel across its 10 offices, four of whom are based in Asia. Hong Kong-based lawyers Wilson Ang, Rosamund Barker and Howard Lam have been appointed from the litigation, capital markets and banking practices respectively, along with Singaporebased corporate & M&A lawyer Sophie Mathur.

Fulbright & Jaworski

various

Fulbright adds to HK office with new hires Fulbright & Jaworski has added six lawyers to its Hong Kong office. The firm has hired WongPartnership’s former head of dispute resolution in China – Jessica Fei – as counsel, transferred international dispute partners Richard Hill and Stefan Jessica Fei Ricketts from London to Hong Kong, and added three new associates – Eric Wong, Fung Lin Leung and Pengfei Fu. “We have seen rapid growth, market liberalisation and the transformation of the Chinese economy during the past decade,” said Jeffrey Blount, the head of Fulbright’s China and Asia-Pacific practice groups.

“As Asian markets have matured, attracted vast amounts of foreign capital and otherwise become more integrated into the global economy, we have seen a predictable increase in complex disputes.”

Run Ming

Shanghai Shimin

Former partner rejoins Shanghai Shimin Japan practice veteran Qi Bin has rejoined Shanghai Shimin law office as a partner, leaving Run Ming where he was a founding partner and helped build up the firm’s Shanghai branch.

Qi was a partner at Shimin for a number of years before leaving three years ago to head up Junyi’s Shanghai office. He became a founding partner of Run Ming when it was established based on a merger between a Junyi team and a new start-up Beijing firm, Runbo, in April 2007.

Run Ming

Run Ming adds two partners on anniversary Run Ming Law Office celebrated its two-year anniversary in early April, and marked the occasion with the appointment of two new partners in Beijing – Charles Liang and Kathy Yang.

Liang, previously the general counsel for Alstom www.legalbusinessonline.com

in China, has joined Run Ming as an executive partner. Liang co-founded Jingtian & Gongcheng before moving to in-house roles in Motorola, Agilent Technologies, Intel and Alstom.

Yang joins from O’Melveny & Myers’ Beijing office, where she was a senior counsel in the firm’s M&A practice. Her practice focuses on M&A, private equity, securities offerings, bonds issuance and foreign direct investment in China. Prior to joining O’Melveny, she worked in the Chicago office of another major international law firm.

Freehills

Norton Rose

Freehills lawyer joins Norton Rose Singapore Norton Rose has secured the services of former Freehills senior energy lawyer Prashanth Sabeshan, who will it join its Singapore office as an of counsel.

Indian-admitted Sabeshan advises on energy and infrastructure projects in the subcontinent and throughout the Asian region. His appointment is timely as Norton Rose intends to bolster its India practice after obtaining a QFLP licence.

“India is very important to our Singapore practice, and Prashanth brings an in-depth knowledge of Indian energy and infrastructure deals - he will play an important role in the continued growth of our business in Asia,” said Jeff Smith, a Singapore-based partner in the firm’s energy practice.

Clifford Chance

Jones Day

Jones Day Tokyo appoints competition advisor Akio Yamada has joined Jones Day’s Tokyo antitrust and competition law practice as a senior advisor.

Yamada previously held a number of key positions within the Japanese business community and academia, including secretary general of the Japan Fair Trade Commission and affiliated professorships at Kyoto, Doshisha, and Waseda universities.

Phillip Proger, global head of the firm’s antitrust and competition practice, said Yamada’s appointment will help it stay ahead of changes to Japan’s competition law regime.

Simmons & Simmons

Simmons bucks trend to relocate three Simmons & Simmons has moved three senior corporate partners back to London from its China offices, which has resulted in a number of local associate redundancies in the region.

The three partners leaving for London are head of the Asia corporate practice Damon Le Maitre-George and corporate partner Charles Mayo in Hong Kong, and partner Jane Newman in Shanghai.

Hong Kong partner Tom Deegan will replace Le Maitre-George as the new regional corporate head.

White & Case

PE partner trades London for Hong Kong Clifford Chance private equity (PE) partner Simon Cooke will relocate from the company’s London office to Hong Kong as the firm strengthens its PE offering.

Cooke will work closely with HK-based partner Andrew Whan in what is one of the region’s largest PE teams. Whan says that Cooke’s relocation is evidence that there are still deals to be struck for sophisticated PE investors in the region. “Like our clients, we remain upbeat and believe that the private equity market in this region will continue to weather the global financial storm,” Whan said, noting that investors have recently been setting their sights on the Asia PE market as well as public markets across the region.

A&O

Fair Trade Commission

White & Case aviation lawyer flies to Singapore White & Case aviation lawyer Sebastian Buss has been transferred from the firm’s London office to its new QFLPlicensed office in Singapore.

Buss has also been appointed partner in the firm’s Asia energy, infrastructure, project and asset finance practice, and will raise the Singapore office’s number of Sebastian Buss lawyers to 24.

“The Asia-Pacific asset finance and aviation finance market is growing and it is essential for our continued success within the market to continue to grow our practice as well,” Buss said.

Walkers

Insolvency lawyer heads for Hong Kong Walkers has secured a coup after announcing Fraser Hern had joined its Hong Kong office as part of its insolvency, restructuring and corporate recovery group.

Hern, who joins from Allen & Overy where he was a senior associate, advises insolvency practitioners, turnaround professionals, bank creditors, debtors, shareholders, bondholders and other stakeholders on corporate and financial restructuring and insolvency matters.

“We are seeing a substantial increase in restructuring work given the current economic climate,” said Guy Locke, global head of the restructuring, insolvency and corporate recovery group.

Harneys

Ogier

Harneys lawyer returns to old firm Former Harney Westwood & Riegels lawyer Ray Wearmouth has re-joined his old firm Ogier and will be based in the British Virgin Islands (BVI) office.

After serving seven years as an equity partner at Harneys and later establishing its Ray Wearmouth Hong Kong office, Wearmouth returned to Ogier’s corporate, commercial and banking practice.

25

News | deals update >>

mergermarket M&A deals update

26

Asian Legal Business ISSUE 9.5

News | deals update >>

www.legalbusinessonline.com

27

News | regional update >>

Regional updates

CHINA

28

CHINA

Paul Weiss

Philippines

SyCip Salazar Hernandez & Gatmaitan

MALAYSIA

Tay & Partners

SINGAPORE Loo & Partners

INDonesia

BT Partnership

Each month, ALB draws on its panel of country editors to bring readers up to date with regulatory developments across the region

New Focus and New Thresholds for Chinese Outbound Investments On March 16, 2009, China’s Ministry of Commerce (“MOFCOM”) issued the Measures on the Administration of Overseas Investments (the “Measures”), replacing the regulations issued in 2004. The Measures apply to investments by entities established in China in non-financial enterprises outside China.

At the heart of the Measures is MOFCOM’s determination to focus the central government’s caseload on large scale or politically sensitive investments and allow other applications to be approved more easily. The 2004 framework authorized provincial level MOFCOM authorities to approve investments by enterprises under the local government in certain designated countries; investments in other locations or by enterprises under the central government required national level MOFCOM approval.

Under the Measures, applicants should instead follow one of three tracks, depending on the significance of the investment. A fast track applies for investments of less than US$10 million and which do not fall into the categories requiring provincial or central approval (see below). Such applications do not require a full review and should obtain approval within three business days after submission of an application form (but not full documentation) to either a provincial or the central MOFCOM bureau. On the second track, provincial MOFCOM bureaus may approve (i) investments of between US$10 million and US$100 million; (ii) investments in energy and natural resources and (iii) investments that involve “raising external funds” (a term left undefined by the Measures) within the PRC.

Finally, central MOFCOM approval is required for investments that (i) are in an amount of US$100 million or more, (ii) involve the establishment of an overseas special purpose vehicle for the listing of PRC assets, (iii) involve the interests of several jurisdictions, (iv) are in designated jurisdictions (to be set forth in a separate list), or (v) are in jurisdictions without diplomatic relations with the PRC. Despite the welcome clarifications and streamlining detailed above, the Measures may impose unanticipated barriers to outbound investment. For example, the Measures provide that any agreement relating to the outbound investment will only become effective once the relevant governmental approvals have been obtained and not upon execution. Careful drafting will be required to ensure that key contractual provisions retain their enforceability pending receipt of such approvals.

Written by Peter Davies, associate Paul, Weiss, Rifkind, Wharton & Garrison Hong Kong Club Building, 12th Floor 3A Chater Road, Central Hong Kong Email: pdavies@paulweiss.com Ph: (852) 2536-9933

Philippines

Overhauling Foreign Exchange Regulations As a measure to further liberalize and streamline the foreign exchange regulatory framework of the Philippines, the Bangko Sentral ng Pilipinas (“BSP”, Central Bank of the Philippines) issued Asian Legal Business ISSUE 9.5

News | regional update >>

BSP Circular No. 645 on 13 February 2009. This is pursuant to an earlier Resolution of the Monetary Board (Monetary Board Resolution No. 61 dated 15 January 2009) where it approved additional reforms to the foreign exchange regulatory framework and consolidated all existing rules on foreign exchange transactions thru the issuance of the new “Manual of Regulations on Foreign Exchange Transactions”, replacing Central Bank Circular No. 1389 dated 13 April 1993.

BSP Circular No. 645 amended existing regulations by limiting the application of the rules on the sale of foreign exchange to sales made by authorized agent banks (AABs) and their subsidiary/ affiliate forex corporations.

Government entities should now submit their foreign borrowings plan for the following year every end of September to the BSP International Department, regardless of amount.

Private entities should submit their own plans if their borrowings will at least be USD10 million.

BSP approval of foreign loans must now be secured prior to signing of loan documents and/or drawdown of loan proceeds. Also, non-residents’ issuance of notes or bonds in the domestic market now requires prior BSP approval.

Loan prepayments to be serviced with foreign exchange purchased from AABs or AAB-forex corps should be approved first by the BSP. However, prior BSP approval for foreign loans of private banks with maturities longer than one year that are intended for relending is no longer necessary.

Custodian banks are delegated to register foreign investments in pesodenominated government securities and peso time deposits with tenor of at least 90 days. Earnings from outward investments should be inwardly remitted and sold for pesos through AABs within seven banking days from receipt of the funds abroad together with submission of required documents, unless the earnings are reinvested within two banking days from receipt.

Offshore banking units are prohibited from depositing in their peso deposit accounts with AABs the peso equivalent of foreign exchange remitted and converted to pesos through them, related to inward foreign investments for www.legalbusinessonline.com

payment to designated investee firms/ beneficiaries in the Philippines.

To ensure timely and immediate information of foreign currency movements, the BSP imposed stiffer penalties on custodian and remitting banks for late reporting of transactions in BSP-registered investments.

Written by Jesusa Loreto A. Arellano-Aguda Sycip Salazar Hernandez and Gatmaitan SSHG Law Centre, 105 Paseo de Roxas Makati City, Manila, Philippines Tel: +63-2-817-98-11 loc. 261 Fax: +63-2-817-38-96 E-mail: sshg@syciplaw.com, syciplaw@globenet.com.ph Website: www.syciplaw.com

MALAYSIA

Stimulus for the Malayasia Bond Market On 10 March 2009, Malaysia announced a second economic stimulus package amounting to a whopping RM60.0 billion (approximately USD16.7 billion).

This package accounts for almost 9% of Malaysia’s GDP and is on top of the RM7.0 billion first fiscal stimulus package announced as recently as November 2008.

The size and the swiftness of the second package underscore the rapidly deteriorating global economic environment which the Malaysian economy is facing and which it is neither immune nor insulated from.

Malaysia is the third most export dependent country in Asia after Hong Kong and Singapore, relative to the size of its economy. In the face of declining exports and declining prices of its major exports of crude oil, gas and palm oil, the second package is timely indeed.

The centerpiece of the second package is the plan to get credit flowing again.

Since the Asian financial crisis of 1997, there has been a conscious shift towards the bond market as Malaysian corporations’ source of financing for long-term funds and for infrastructure/ project financing. As a result, Malaysia now has the largest bond market in Asia ex-Japan.

However, in the face of deteriorating economic indicators and a tight credit environment, issuance of Ringgit bonds is expected to drop to RM25.0 - RM30.0 billion in 2009, as compared to RM49.0 billion in 2008 and from a record high of RM54.0 billion in 2007.

Under the current market conditions, even viable companies are facing difficulties in accessing credit. To that end, the second package has allocated RM25.0 billion of guarantee schemes for working capital and capex purposes.

Significantly for the Malaysian bond market, the scheme includes the establishment of a Financial Guarantee Institution by the first half of 2009.

The FGI will be a government-owned corporation and assisted by the Central Bank of Malaysia. It will act as a bond guarantee agency that will provide guarantees for the bonds issued, thereby providing credit enhancements to corporate bond issuances which assists in raising the credit ratings of the issuers. The guarantees will reduce financing costs, assist viable companies to raise much need funds and encourage corporations to make a return to the bond market.

The FGI is expected to assist the raising of some RM15.0 billion worth of bonds which would hopefully have the desired economic multiplier effect to avert a full-blown economic slowdown.

Written by Ronald Tan, Partner Head of Debt Capital Markets Tay & Partners 6th Floor, Plaza See Hoy Chan Jalan Raja Chulan 50200 Kuala Lumpur, Malaysia Phone: +603-2050 1888 DID : +603 2050 1969 Fax: +603-2031 8618 Email: ronald.tan@taypartners.com.my

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News | regional update >>

SINGAPORE

Regulatory Aspects of Islamic Financing – Murabaha Monetary Authority of Singapore (“MAS”) advocates that Islamic finance products shall receive similar regulatory treatments as the conventional finance products. However, MAS has not opted to have a separate Islamic finance regulatory regime that exists in parallel with the conventional framework. MAS accordingly serves as the driving force behind the change in the laws and regulations pertaining to the governance, validation and enhancement of Islamic finance transactions.

Prior to the enactment of Regulation 23 of the Banking (Amendment No.2) Regulations 2006, licensed Banks are only permitted to carry out banking business defined as “the business of receiving money on current or deposit account, paying and collecting cheques drawn by or paid in by customers, the making of advances to customers, and includes such other business as the Authority may prescribe for the purposes of the Banking Act, Chapter 19.” As such, it was at the material time unlawful to trade in real estate property or asset in capacity of a bank.

In the present regime, all licensed Banks may enter into “sale based” transactions with customer and in particular, Murabaha financing (which is commonly referred to as cost-plus financing). Further, there will be no double payment of stamp duty and goods and services tax for Murabaha financing transaction with a real estate underlying asset.

Pursuant to the Shariah concepts of Murabaha, this contract involves the sale of an item on a deferred payment basis whereby the customer is allowed to pay the sale price by agreed instalments.

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The relationship between the parties is as “vendor and purchaser” instead of as “creditor and debtor”.

Murabaha financing is essentially about “real transactions” which transpired between the bank and its customer. Islamic finance is based on Shariah principles which must be strictly adhered to. It is therefore fundamental to understand that, in Islamic finance documentation, the Islamic finance products do not merely replace interest with profit in its documentation.

Ideally, all Islamic concepts of finance products (given the various interpretations adopted in different financial markets) must be approved by a “qualified Shariah Scholar” or “a board of Shariah Scholars” (both of which are not officially constituted under any legal enactments or by-laws).

Further, the parties should execute and perform the transaction “Islamically”, in form, substance and spirit throughout the entirety of the transaction.

Given that the fundamental differences between a conventional finance transaction and Islamic finance transaction lie in the Shariah principles, the writers are of the view that the regulatory authority may wish to consider incorporating the following:i. Shariah concepts and its interpretations which should be clear and consistent; ii. a statutory Shariah advisory board and an infrastructure for the issuance of fatwa for Islamic financial transactions; and iii. guidelines/directives/ practice notes on implementation, products development and enforcement procedures, to be issued on timely basis.

The writers are mindful that the regulatory authority may have considered and may have decided to only incorporate certain Shariah principles and its related supervisory measurement in the present regime.

Written by Ms Lee How Fen and Mr Nicholas Chang

By Ms Lee How Fen Foreign Counsel, Legal Associate (Corporate Practice) Ph: (65) 6322-2205 Fax: (65) 6534-0833 E-mail: leehowfen@loopartners.com.sg and

Mr Nicholas Chang Corporate Finance Executive Ph: (65) 6322-2236 Fax: (65) 6534-0833 E-mail: nicholaschang@loopartners.com.sg Loo & Partners LLP 88 Amoy Street, Level Three Singapore 069907

INDonesia

Enforcement of Foreign Arbitral Award in Indonesia (Part 1) Since 5 August 1981 and pursuant to Presidential Decree No. 34 Year 1981, Indonesia accessed to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards dated 10 June 1958 (or the New York Convention). This accession then registered at the UN Secretary General on 7 October 1981. Notwithstanding such Presidential Decree, enforcement of foreign arbitral award in Indonesia at the time still faced many obstacles especially since the Supreme Court was in opinion that such Presidential Decree was not sufficient to apply as guideline for enforcement of foreign arbitral awards and as such still required implementing regulations. Considering these reasoning, the Supreme Court then issued Supreme Court Regulation No. 1 Year 1990 dated 1 March 1990 regarding Guideline for Enforcement of Foreign Arbitral Awards (PERMA 1/1990).

As a development, Indonesia then enacted Law Number 30 Year 1999 regarding Arbitration and Alternative Dispute Resolution (Law No. 30/1999) to govern all substantial and procedural matters concerning arbitration and alternative dispute resolutions. This law basically adopts the previous rules and regulations with a few modifications.

Asian Legal Business ISSUE 9.5

News | regional update >>

These adoptions and modifications are, inter alia: a. PERMA 1/1990 states that the award can be enforced if there is an exequatur from the Supreme Court.

This is different with the regime of Law No. 30/1999 which regulate that the exequatur shall be issued by the Chief of the District Court of Central Jakarta except if the Republic of Indonesia is involved in the award then exequatur shall be issued only by the Supreme Court. b. Law No 30/1999 compiles all registration requirements contained in Article 3 and 4 of PERMA 1/1999. c. PERMA 1/1999 never specify who should register the award to the Chief of the District Court of Central Jakarta. This is later regulated by Law No. 30/1999 which stated that the registration shall be conducted by arbiter or his/her representative/s.

The execution of foreign arbitral award in Indonesia shall be conducted in 2 (two) steps of Court-mechanisms.

www.legalbusinessonline.com

Those steps are Registration and Execution. a. Registration Every foreign arbitral award shall be registered by the arbiter or its representative/s in the District Court of Central Jakarta as the authorized court pursuant to Law No 30 /1999. Since there is no specific rule regarding the time limit for registration of foreign arbitral award, one can conclude that the time limit is similar with the registration of national arbitral award which is 30 (thirty) days subsequent to the declaration of the award. The registration shall be made by providing certain required documents.

which bound by treaties, in this matter the New York Convention; b. The award is, according to Indonesian law, considered to be within the scope of business law which covers activities in the field of trading, banking, finance, investment, industry and intellectual property; and c. The award shall be in conformity with public order.

Written by Tyana Asri Martianti BT PARTNERSHIP BRI Tower II, 19th Floor Jl. Jend. Sudirman No.45 Jakarta 10210, Indonesia Tel. 62 21 5700 777 Fax. 62 21 5700 877 Email: martianti@btplawfirm.com Web: http//www.btpartnership.com

b. Execution After registration, the Chief of the District Court of Central Jakarta will examine whether the foreign arbitral award can be recognized and enforced or not. There are several considerations in this examination, namely: a. The award was adjudicated by an arbiter or arbitration board in a State

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www.asianlegalbusinessevents.com

HONG KONG 2009

Business Law 23 – 24 June, 2009 | Conrad Hong Kong

Winning Strategies for ALB introduces a new flagship legal event for Hong Kong: ALB’s Business Law Asia, including the first ever Managing Partners Forum and the ALB In-House Legal Summit.

This premium event brings together private-practice partners, lawyers, in-house counsel and C-level executives for two days of world-class presentations, plenary sessions, closed workshops, panel discussions and valuable networking.

Featuring:

Keynote Speakers: Hon Ronny Tong Ka-Wah, SC

Bradford Hildebrandt

Past Chairman of HK Bar Association 1999-2001 Legislative Council Member

Founder and Chairman Hildebrandt

Two Exclusive Presentations on: Competition, Relevancy and the Secrets for Success in a Changing Legal Services Marketplace Keeping Your House In Order: Effectively Managing Your In-House Legal Department

PLUS: The Incoming President of the Hong Kong Law Society

Special Korea Sessions: KIKOs and OTC Derivatives in Korea

Kwon-Hoe Kim

Partner Yoon Yang Kim Shin &Yu

Developments in International Property Rights in Korea

Insolvency Law and Practice in Korea

Wonil Kim

Partner Yoon Yang Kim Shin & Yu

Partner Yoon Yang Kim Shin &Yu

Workshop Sponsors

Supporting Organisation

Associate Sponsor

ALB enjoys alliances with the following organisations

Official Media Partner

Event organised by

Sang-Goo Han

CP

s se s EE ou sine FR n-H Bu * for r I l & ers lied Fo se ad app un Le oints p Co D

Asia & In-House Summit PLUS – First ever Managing Partners Forum

Times of Challenge & Change Exclusive Workshops include: How In-house Counsel Can Cope with Current Issues in the Marketplace in Asia

Success Through Innovation and Intellectual Property in Times of Challenge and Change

Ludwig Ng

Senior Partner ONC Lawyers

Toby Mak

Patent Attorney ONC Lawyers

Peter Charlton

Regional Managing Partner Asia, Clifford Chance

PLUS: Panel Discussion – In-House Innovation in Turbulent Times, featuring: Angela Mak

In-House Counsel Panel Chairperson President HKCCA

Head Corporate General Counsel & Executive Director TOM Group

Noelle Tai

Patrick J. Moran

Jasmine Karimi

General Counsel Yahoo

First Vice President, Legal Department Merrill Lynch (Asia Pacific) Ltd

Brett Graham

Managing Director, Legal & Compliance Division Morgan Stanley

Coming Soon:

Additional Presentations Including: Staying Motivated in Turbulent Times Change Management Strategies

4

E ASY WAYS TO REGISTER

* dara@kmimail.com | ( +852 2815 5988 . +852 2815 5225 | www.asianlegalbusinessevents.com

FREE For In-House & Counsel & Business Leaders* US$1995 For Legal Professionals & Related Service Providers

PLUS: VIP Networking Luncheons FREE ALB Pack worth over US$100

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* Registration is complimentary for In-House Counsel & Business Leaders (Not applicable to law firms, related supplier companies & vendor companies) The organiser reserves the right to refuse registration from service providers or persons not officially invited without further explanation.

www.theinhousesummit.com

HONG KONG 2009

Business Law 23 – 24 June, 2009 | Conrad Hong Kong Following the successful launch of ALB’s Business Law Asia and Managing Partners Forum in Singapore last year, ALB takes pleasure in producing a new flagship legal event for Hong Kong. Incorporating ALB’s Business Law Asia and Managing Partners Forum and the ALB In-House Legal Summit, this premium event brings together private-practice partners and lawyers, in-house counsel and C-level executives for two days of world-class presentations, plenary sessions, closed workshops, panel discussions and valuable networking.

The theme for 2009 is Winning Strategies for Times of Challenge & Change

Bradford W. Hildebrandt

will fly in from the USA to join a host of other high-profile speakers at this month’s ALB Business Law Asia & In-house Legal Summit Hong Kong 2009. In two exclusive workshop presentations, Hildebrandt will speak on “Competition, relevancy and the secrets for success in a changing legal services

marketplace” and “Keeping your house in order: effectively managing your in-house legal department” Another highlight of the event will be expert opinions from

Clifford Chance on How In-house counsel can

cope with current issues in the market place in Asia

Other workshop presentations include: • Success Through Innovation and Intellectual Property in Difficult Times • Korean Country Report: Insolvency Law and Practice in Korea – Will the KIKOs Kill further OTC derivatives in Korea?

In addition to practice area updates, breakout sessions and dedicated workshops, the event also offers new strategies for doing business in these challenging times. Presentations will include: • Leaner Internal Cost Structures for Tough Times • Change Management • Manpower Restructuring and Employee Motivation

Including the first ever Managing Partners Forum where attendees will hear first-hand from the region’s leading legal and business minds on Global Financial Response Initiatives During Turbulent Times.

In-House Counsel attend for FREE*

US$1,995 for legal professionals and related service providers (inc. suppliers etc.)

Book Now – Seats Limited | CPD points applied for * Terms and conditions apply.

Registration is complimentary for all in-house counsel (non Law Firm or Supplier CEO’s and Business Leaders), and corporate business professional.

The organiser reserves the right to refuse registration from service providers, persons not officially invited or any privately practicing lawyer without explanation.

Associate Sponsor Workshop Sponsor Supporting Organisation:

l se ON un TI co RA for se T lied ou GIS app s -h In RE point EE CPD FR

Asia & In-House Summit Including the first ever Managing Partners Forum Hong Kong Distinguished Workshop Presenters: Bradford Hildebrandt Founder and Chairman Hilderbrant

Peter Charlton

Regional Managing Partner Asia, Clifford Chance

Presentations on: Competition, relevancy and the secrets for success in a changing legal services marketplace and Keeping your house in order: effectively managing your in-house legal department

Presentation on: How In-house counsel can cope with current issues in the market place in Asia

Ludwig Ng

Toby Mak

Senior Partner ONC Lawyers

Kwon-Hoe Kim

Sang-goo Han

Partner Yoon Yang Kim Shin &Yu Presentation on: KIKOs and OTC derivatives in Korea

Presentation on: Insolvency law and practice in Korea

Partner Yoon Yang Kim Shin &Yu Presentation on: Developments in International Property Rights in Korea

Keynote Speakers: Keynote Speaker

Ronny Tong Ka Wah

Patent Attorney ONC Lawyers

Presentation on: Success through innovation and Intellectual Property in times of challenge and change

Wonil Kim

Partner Yoon Yang Kim Shin & Yu

Chairman of HK Bar Association 1999-2001 Legislative Council

Keynote Speaker President, Law Society of Hong Kong

Presentation on: Success through innovation and Intellectual Property in times of challenge and change

Esteemed Panelists: Discussion Topic - Challenges Faced by In-House Counsel in the Current Economic Crisis Angela Mak

In-house counsel panel Chairperson

Head Corporate General Counsel & Executive Director TOM Group

Jasmine Karimi President HKCCA

Brett Graham

Noelle Tai

Managing Director, Legal & Compliance Division Morgan Stanley

General Counsel Yahoo

Patrick J. Moran

First Vice President, Legal Department Merrill Lynch (Asia Pacific) Ltd

Places are limited, please register at your earliest possible convenience to avoid disappointment Please complete all details Name:

Job Title:

Company:

Contact Person:

Address: Tel:

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ALB Inhouse Legal Summit strives to meet the needs of all our valued guests. Please provide advance feedback of any specific areas you would like covered by our expert speakers and panelists

Please fax form to 852 2815 5225 Alternatively, you may register online as well, at http://hongkong.theinhousesummit.com/ Complimentary registration is open to and welcome from all In-house counsel and corporate business professionals.

The organiser reserves the right to refuse registration from service providers, persons not officially invited or any privately practicing lawyer without explanation.

For event enquires please contact: Dara Yam, Conference & Event Manager Tel: +852 2815 5988 | Email: dara@kmimail.com | Website: www.theinhousesummit.com NOTE: The data we collect from this form may be used for other marketing purposes. If you do not wish to have your information used please kindly inform us.

ALB enjoys alliances with the following organisations

Official Media Partner

Event organised by

NEWS | law firm management >>

The global financial crisis and law firms:

A symptom of a greater ill Don’t blame the global financial crisis for all of your current problems. Chances are it has more to with internal factors as well as economic conditions.

S

ince opening for business in 1975, Brad Hildebrandt, founder and chairman of Hildebrandt has seen the legal profession evolve from an esoteric industry mired both in introspection and academia into one of the most competitive in the professional services sector. He has seen it move from something of a cottage industry to a truly transnational industry grossing billions of dollars each year.

But an all too well known fact of life is that growth brings with it challenges and problems of its own, the depth of which many of us are now seeing for the first time as firms start to feel the pinch of the global financial crisis. The largest single issue facing lawyers, says Hildebrandt, is costs and just how to keep them as low as possible.

“Cost control has and will always remain an issue,” says Hildebrandt.

“The dynamic between expansion and growth and revenue is a crucial one for law firms and legal departments [inhouse legal teams] alike to master.”

But while keeping costs under control may be issues of perpetual importance to lawyers, Hildebrandt says that many are loosing the battle and the severe discomfort that many are experiencing in this regard at the moment is not only brought about by the global financial crisis, but by an internal failure to properly balance the books. Hildebrandt says this failure is one that can trace it roots back to the

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Asian Legal Business ISSUE 9.5

NEWS | law firm management >>

last time the legal industry suffered a major slowdown, the early 1990s.

“If we have a look back to the economic slowdown of the early 90s, which hurt law firms in much the same way as is occurring now, the upside was that when things returned to normal there was a sharp increase in the demand for legal services,” says Hildebrandt. “But many firms found themselves short staffed, they did not have the resources to deal with the work.” This experience changed the way that law firms think about resourcing, never again would they be caught short when instructions were falling like manna from heaven.

“The trend of law firms being a little understaffed probably lasted until 1997, but since then it has been all about bringing people on board. But where many have gone astray is that they have hired new lawyers without looking at their costs structurewhether revenue still exceeds it, whether there is sufficient client demand and whether hourly rates are appropriate,” says Hildebrandt.

“Really it’s not a case of their current discomfort being caused by the global financial crisis, but by their own failure to look at the very basic costs versus revenue figure.”

The westernisation of Asia’s legal market

The empirical data supports the widely held assertion that legal markets in Asia are among the worlds fastest growing. More new law firms emerge in places like mainland China, India and Singapore every month than in Europe or the US, more mergers, alliances and tie-ups struck and more acquisitions sealed than any other place on the planet and Asian law firms themselves have been growing exponentially over the last few years via organic means such as partner level lateral hires. But where law firms in Asia have shown their penchant for lightning growth, they have traditionally been last to www.legalbusinessonline.com

the table when it comes to recognizing the utility of business development, marketing and branding due to a number of cultural factors.

“Law firms in Asia are still in an early stage of development compared to those in US or Europe,” says Hildebrandt. “Partners and senior managers at law firms in Asia also tend to be the most conservative, so they may not be as inclined to market or brand develop as heavily as a US or UK firm,” he said noting that despite this Hong Kong and Australia stand out as two most advanced markets in the Asian region in this regard.

But, Hildebrandt sees changes on the horizon. In response to increased competition, he believes many law firms in the region will begin to discover, “whether they like it or not,” that more investment must be made in business development, marketing and branding as a means of differentiation in increasingly saturated legal markets.

“Where some law firms in Asia may have had a monopoly in their areas of specialty now they face more and more competition from international law firms,” says Hildebrandt. “If they do not adopt a more US or European approach to selling themselves it will remain very difficult for them to keep pace with the international players.”

And while he notes that many local law firms in the region have sought to retain the competitive edge over their international counterparts pound-forpound- by having larger critical mass, this too is not enough and may, in fact, prove counterproductive in the long run.

“A lot of law firms in Asia have experienced enormous growth over the last couple of years, growth which exceeds that of many US or UK firms,” says Hildebrandt citing the example of Chinese firm King & Wood which is the country’s largest law firm with over 800 lawyers and an extensive network of offices.

“The challenge for all international firms is to have a global integration

Brad Hildebrandt

plan for practices and organizational structures and realise that brand is essential and brand development is no longer something they can ignore. These are the keys to competing at home and in the global legal market.” ALB ►► See Brad Hildebrandt live and exclusive in Hong Kong Brad Hildebrandt is widely recognised as the pre-eminent management and consulting guru for the legal profession. As Chairman and founder of Hildebrandt he has saved countless top-tier law firms in more than a dozen nations. He has provided them with the business armory to weather, and emerge stronger, from the fiercest of economic storms and become unrivalled leaders in their respective markets.

Bradford W. Hildebrandt will join a host of other high-profile speakers at this month’s ALB Business Law Asia & In-house legal Summit Hong Kong. In two exclusive workshop presentations Hildebrandt will address today’s major challenges for both law firms and in-house counsel. His two exclusive workshop presentations include: “Competition, Relevancy and the Secrets for Success in a Changing Legal Services Marketplace,” and “Keeping Your House in Order: Effectively Managing Your In-house Legal Department” For more information on the event, please see p34.

35

special report | Singapore 09 >>

SINGAPORE 09 36

Asian Legal Business ISSUE 9.5

special report | Singapore 09 >>

New kids on the block Not since Singapore Inc opened its doors for business some 40 years have so many new law firms entered the market. The past 12 months alone have seen no less than nine international firms make the move, with more tipped to open later this year. ALB looks at what we expect from some of these newcomers

T

he legal community in Singapore was abuzz for most of last year with predictions about which firms would be selected by the Singapore government as recipients of licenses under its Qualifying Foreign Law Practice (QFLP) scheme. Most were put out of their misery late last year when Herbert Smith, Norton Rose, Clifford Chance, Allen & Overy, Latham & Watkins and White & Case were confirmed as licensees. But amidst this, a number of other foreign firms were still planning their entry into the Singaporean legal market.

Ask the managing partner of any of the new firms that have opened up in Singapore over the past 12 months and chances are they will tell you their move into the country is governed by a number of factors:

Singapore-related work; it is a stepping stone for regional domination.

“Singapore is the place to be,” says Rhonda Hare, the Singapore managing partner of Australian firm Blake Dawson. “Our move into Singapore was client led and we act for a number of Singapore clients in the hotels, tourism and hospitality sectors, but the move is equally about what we can gain from the region. Singapore is well known as being the business and financial hub of South East Asia and we want to expand our operations in the region by being here.”

Denton Wilde Sapte closed all of its Asian offices – Singapore, Tokyo and Hong Kong – in 2004, but Jonathan Solomon, the partner in charge of resurrecting the firm’s Singapore office, cites similar reasons behind his firm’s move back there, saying that it is being looked at as the

“We have started seeing a good stream of instructions from not only Singapore, but from places like Indonesia and Vietnam, so for our trade finance group it made sense to open up here ” Jonathan Solomon, Denton Wilde Sapte client demands, broader or regional strategy, and revenue potential.

But irrespective of what answer is given, moving into Singapore is not so much about the local work will be generated as it is about the possibilities on offer across the south and Southeast Asia.

India via Singapore

International law firms who operate in the Lion nation realise that being there offers far more than the possibility of just picking up www.legalbusinessonline.com

firm’s launching pad to penetrate the emerging markets in the region.

“At the time of closing the Asian offices, it was seen as a strategic and financial decision. The strategy did not see the Far East being profitable enough,” he says. “What has changed is that we have started seeing a good stream of instructions from not only Singapore, but from places like Indonesia and Vietnam so for our trade finance group it made sense to open up here. The Singapore relaunch comes in response to client requests. They wanted to continue to

►► Foreign law firms who have entered Singapore in the Past 12 months* Name Blake Dawson Cains Denton Wilde Sapte Eversheds Hill Dickinson K&L Gates Lexygen O’Melveny & Myers Stuart Isaacs QC

Home jurisdiction Australia Isle of Man UK UK UK US India US UK

*This list does not purport to be exhaustive

instruct us here, but said we needed people on the ground.”

But as much as Singapore is a gateway to Southeast Asia, it also offers international firms unprecedented access to the closed Indian market. This is cited by managing partners of new Singapore entrants as perhaps the most exciting development. Each of the new kids on the block already boasts relatively well developed India-related practices, but being in Singapore presents an opportunity to further develop this aspect of their practice with a view to entering a liberalised Indian legal services market.

“We have had a deliberate focus on India for about two years John Rogers, now,” says John Rogers, Walkers co-managing partner of Walkers’ Singapore office. “It makes sense now that most of this work will be done through our Singapore office owing to geographic proximity and the presence of Indian clients here.”

Rogers is keen to keep a close eye on the Indian market. “We are looking at what is on offer in India, but we have been making regular trips there on the back of increased demand for British 37

special report | Singapore 09 >>

Virgin Islands and Cayman law advice on Indian transactions. Mauritius is still the preferred destination for investment into India, but as domestic Indian banks start to lend in transactions there will be more work on offer,” he says.

Setting their own agenda

The managing partners at these new entrants into the market all claim the partners at firm headquarters have not set any arduous targets to be fulfilled over the next 12 months. Rather, each of them told ALB they have been given a proverbial blank sheet of paper – no financial targets, no headcount targets, no timeline to break even – just a direction to make the office a successful and integral part of their firm’s global network. But that is not to say these managing partners haven’t set their own ambitious targets.

“We need at least 15 people to come on board and I am looking to have achieved critical mass within 12 months,” says Desmond Ong, Eversheds’ Singapore managing partner.

“This will probably occur through hiring former colleagues and lateral hires or a mixture of both.”

All lawyers firmly agree that bringing new talent on board is much easier in the current economic climate. If 2007 and the first half of 2008 were an employees’ market then the situation has now very much reversed.

“Its an employer’s market now, there is no doubt about that,” Ong says. “Driven by international firm retrenchments and layoffs there is a surplus of talent in the market at the moment, and this makes expanding new offices a little easier.”

Ong estimates he has at least 200 CVs on his desk at the moment, and while this should come as no shock, what is surprising is the seniority and experience of some candidates.

“I have certainly been surprised by the quality of some of the candidates I am receiving CVs from,” he says. “[At] partner and of counsel level, and lawyers with very, very impressive track records and a lot of experience under their belt would account for maybe 70% of the CVs I have on my desk.”

The managing partners of other new entrants into Singapore cite similar experiences, but many have been looking to fill vacancies by relocating lawyers from overseas offices instead of 38

dipping into the local talent pool – for one very good reason.

“I am always a little suspicious when I get a CV from a lawyer who is not gainfully employed at the moment,” says one international firm’s manging partner, who declined to be named. “But in Singapore I am doubly suspicious. Domestic firms here have a relatively low turnover rate, international firms maybe marginally higher. A lot of due diligence is needed when looking at lawyers who are currently out of work,” he continues, noting this is just as applicable to a would-be associate as a would-be partner.

The last roll of the dice?

Singapore is a hospitable place. No country knows the value of opening its markets more than the Lion nation – it has thrived on the back of more than 600 years of open markets and free trade has been critical in establishing it as both the financial and legal hub of south Asia. But while domestic firms extend the warmest of wishes to their foreign counterparts, there is a sense that for some the opening of a Singapore office may be a bit of a last resort in increasingly difficult economic conditions.

“Some of the firms that have opened up, or some of those that are planning to open in Singapore, have been hit hard in their home markets,” says a partner at one Singapore domestic firm. “You really do get the impression that is the last throw of the dice for some of them.”

The same partner questions whether the move into Singapore is guided more by the amount of work on offer rather than a pre-existing stream of client instructions. “The view in the market is that some firms are entering Singapore for its capacity to deliver new work and of course no one can fault that. But is there enough work to keep lawyers in the new office occupied in the interim? That’s the question – some may be sitting idly by for a while waiting for the instructions to come in.”

The implication is clearly that as soon as times get tough, these new entrants may be among the first to go.

On the other hand, the new arrivals are, ostensibly at least, impressive in their commitment to Singapore.

Time, and the markets, will reveal the answer.

The China Despite cultural and economic ties However, as ALB discovers, this

T

he numbers are staggering.

Thus far in 2009, China has logged 22 announced outbound M&A deals, including two of the largest on record, achieving a cumulative deal value of US$16bn – a new record, according to Dealogic.

Still boasting a relatively robust economy, China continues to be lucrative market for both international and local firms, but just where do Singaporean firms fit into the picture?

Listings

In years past, a major source of work for Singapore firms was Chinese companies looking to list offshore. “This was until September 2006, when a new requirement was introduced where PRC domestic companies effectively needed to seek MOFCOM and CSRC approval to list overseas – that put a dampener on this type of work,” says Drew & Napier director Boon Ann Sin. There was a transition period, whereby companies who had already transferred their assets prior to September 2006 were permitted to list without approval, but this window has now closed. Drew & Napier had an office in Shanghai but it closed in 2008.

“Prior to September 2006, business was picking up nicely and we had a number of clients looking to list offshore, ►► Singapore firms in China * KELVIN CHIA PARTNERSHIP - SHANGHAI Entered market: 2004 Chief representative: Sim Siew Kiang KHATTARWONG - SHANGHAI Entered market: 2003 Chief representative: Tan Chong Huat RAJAH & TANN - SHANGHAI Entered market: 2003 Chief representative: Yang Lih Shyng RODYK & DAVIDSON - SHANGHAI Entered market: 1996 Chief representative: Hoh Li Hia Josephine WONGPARTNERSHIP - SHANGHAI Entered market: 2004 Chief representative: Gan Kain Koon Gerry * Information correct as at August 2008 Asian Legal Business ISSUE 9.5

special report | Singapore 09 >>

connection that span 600 years, only a few Singaporean firms have offices in China. simply means servicing the dragon economy can best be done from home but the regulatory changes have basically made this difficult,” Sin says.

Outbound M&A

Loo Choon Chiaw of Loo & Partners says there has been a shift in the direction of Chinese investment. “Since the early 1980s, the PRC has been the biggest beneficiary of foreign direct investment.

The statistics suggest that the trend may soon be reversed as PRC enterprises begin to venture abroad ,” he says.

Over the past nine months, Loo & Partners has been instructed by PRC State-linked conglomerates on several substantial acquisitions of coal and other minerals in Mongolia, Russia and Indonesia, the building of an electricity and heating plant in Russia on a BOT basis, and the design and building of a coal dedicated port terminal in Russia.

There is little doubt that outbound China M&A will continue to rise. “It has not fully taken off yet, but there is an increasing level of interest,” Sin says. “The bigger Chinese companies are resource hungry and there will be opportunistic buying – we’ve had queries, for example, from oil and gas entitles looking to buy assets.”

Loo agrees: “I expect Boon An Sin, our Greater China Drew & Napier practice to receive more instructions from our PRC clients on outbound FDI in the natural resources and energy space,” he says. “The negative impact of the global financial crisis may ironically turn out to be a catalyst in expediting the PRC outbound FDI as the costs of overseas acquisitions become cheaper to our PRC clients.”

However, some suggest that if the predicted M&A spree does occur, it will not necessarily prove a bonanza for Singaporean firms. “If prices fall, Singapore is only one of many potential target countries,” Sin says. “Particularly with the focus on commodities, other markets such as www.legalbusinessonline.com

Australia and South Africa will be more attractive.”

Inbound M&A

In contrast to outbound FDI from China, the inbound side of the equation has been somewhat slow. ThomsonReuters calculated in April that China’s cross-border inbound volumes had reached US$3.4bn from 103 deals, down 42% from the same period last year.

But the work is still there for firms who choose to look for it – particularly those based in Singapore. “China and Singapore have enjoyed a strong trading relationship for many years,” says Lin Song, co-head of KhattarWong’s international China practice. “According to International Enterprise Singapore, China has been Singapore’s top foreign investment destination since 1997. For the past three years, bilateral trade has been growing by more than 25%, making Singapore the eighth largest investor in China.”

Sin says that there is still a significant level of interest from Singapore firms looking to invest in China. “They are at saturation point in Singapore, so they are looking to invest in China – often in a different area of business.”

There may also be opportunity in other

areas. “Our international China practice has seen an increase in arbitration work and we predict that workflow in this area will continue to grow strongly. Thus far this year, our firm has handled multimillion dollar claims involving parties from America, Asia and Europe,” says Hee Theng Fong, Head of International China Practice at KhattarWong, “While the global financial crisis may affect M&A activities adversely, it is a factor that has contributed to the rise of arbitration cases.”

Relationships with local firms

Given the prohibition on foreign firms advising on local law, Singaporean firms need to have close relationships with their local counterparts. Drew & Napier works with a number of Chinese firms. “We work together on long drawn projects, and quite often we are in daily communication,” Sin says. “Having worked on other transactions together, the partners know each other fairly well.”

KhattarWong has formed relationships with local firms which Song describes as “counting as family.” are by and large the bigger “Essentially, we have grown our capabilities to be an offshore firm with onshore capabilities and an international outlook,” he says.

39

FEATURE | Korean Deals of the Year >>

ALB ASIAN LEGAL BUSINESS

KOREA

DEAL OF THE YEAR 2009

ALB

Korean 2009 ASIAN LEGAL BUSINESS

Deals of the Year:

Judged by a panel of leading in-house counsel, ALB presents the best Korean deals of the past year

W

hichever way you look at it, the South Korean economy took a beating in 2008. More exposed than other economies in the region to the global financial crisis, the won depreciated at a rate unseen since the Asian financial crisis in the late 90s, exports plunged a record 32.8%, the current account deficit exceeded $US6bn for the first time in a decade, both the KOSPI and one-year forward EPS estimates dwindled 37% and 11% respectively, and Korea earned the infamous tag of being the worse performing G20 nation after its economy shrunk by 2%.

Dealflow, somewhat predictably, ground to a halt. Thomson Reuters statistics indicated that the number of deals transacted fell by 35% in 2008, yielding a total value of just US$42bn compared to the US$64.5bn only a year earlier. The second, third and fourth quarters of 2008 merit special mention in this regard. No more than US$500m worth of offshore capital entered the domestic market in the second quarter of 2008 and while

40

in the third quarter capital inflows brought in just over US$1bn, things returned to normal in the fourth

“Korea’s chaebol were behind some of the most innovative… exciting deals on the market in 2008”

quarter when outbound investments plummeted to US$400m – their lowest in the past five years.

However, inbound is only half the story. The outbound deal landscape was very much alive and kicking last year as the inaugural ALB Korean Deals of the Year indicate. From Doosan’s acquisition of Ingersoll Rand to the Korea Investment Corporation’s acquisition of a stake in Merrill Lynch, and LS Cable’s acquisition of Superior Essex, the strength of Asian Legal Business ISSUE 9.5

FEATURE | Korean Deals of the Year >>

The finalists: by practice area

►► Methodology

Law firms from across the region were invited by email to nominate and detail the most outstanding Korea-related deals they have been involved in during the calendar year 2008. In addition, the ALB team conducted interviews with leading in-house counsel and corporate leaders, collected third-party information and drew on their own stock of industry knowledge.

Upon completion of research, shortlists of the finalist deals in each practice area were compiled by the ALB team and sent to a panel of judges comprised of corporate counsel drawn from Korea’s top listed companies. These judges were asked to examine the information, and objectively rate each deal according to its size, complexity, breadth and innovation, and make their votes for top deal within each practice area.

Using a simple points system to aggregate and weight the judges’ votes, ALB’s Korean Deals of the Year: 2009 were decided. In-house judges participated on the condition of anonymity.

Asset & Corporate Finance Name of deal KOMARF- sale and restructuring

Kim & Chang

Value (US$m)

3,900 Bae, Kim & Lee, Linklaters, Kim & Chang, Paul, Weiss, Sullivan & Cromwell

CMA CGM Ship financing

1,068 Allen & Overy, Norton Rose, Orrick, Yulchon, Kim & Chang

Name of deal

Value Firms involved (US$m)

Korea Midland Power Euro bond offering

300 Allen & Gledhill, Kim & Chang, Segye Law Offices, Simpson Thacher & Bartlett, Taylor & Co

Korea Rail Road Corporation notes offering

300 Allen & Overy, Davis Polk, Kim & Chang, Shin & Kim

Hyundai Capital Services MYR denominated MTN program

543 Yulchon, Zul Rafique & Partners

Shinhan Card Company MTN program

2,000 Allen & Overy, Bae Kim & Lee

Industrial Bank of Korea Commercial Paper programmes

2,000 Lee & Ko, Allen & Overy

Capital Markets: Equity market Name of deal SK Telecom- Hanaro Telecom Share sale & acquisition

No. of Deals

United Techologies HK listing 22

19,7102

13

Lee & Ko

13,329

9

Shin & Kim

10,152

8

Cleary Gottlieb

6,700

4

Allen & Overy

6,420

6

LS Cable- Superior Essex acquisition

Linklaters

5,333

3

Yulchon

3,868

3

Halla Consortium- Mando Corporation acquisition

Simpson Thacher & Bartlett

2,675

3

Orrick

1,500

4

Source: ALB Deals database * This list does not purport to be exhaustive

Taewoong Co Ltd GDS offering

Value Firms involved (US$m) 1,200 Shin & Kim, Kim & Chang, Baker & McKenzie, Yulchon, Cleary Gottlieb 132 DS Cheung & Co, Lee & Ko 75 Bae, Kim & Lee, Davis Polk, Kim & Chang, Simpson Thacher & Bartlett

M&A Name of deal

Value Firms involved (US$m) 1,200 Bae Kim & Lee, Cleary Gottlieb, Kim & Chang, Wachtell, Lee & Ko 652 Allen & Overy, Bae Kim & Lee, Kim & Chang, Milbank, Shin & Kim

E-land Group- Homever sale

2,200 Bae Kim & Lee, Kim & Chang

C&M Co LBO

2,300 Shin & Kim, Bae Kim & Lee, Lee & Ko, Kim & Chang, Simpson Thacher & Bartlett, Cleary Gottlieb, White & Case, Maples & Calder, Squire Sanders & Dempsey

Korea Investment Corporation- Merrill Lynch stake acquisition

2,000 Kim & Chang, Cleary Gottlieb, Shearman & Sterling, Sullivan & Cromwell, Wachtell

Dongbu Group share disposal

Korea’s chaebol was on show in 2008 and similarly 2009 is predicted to be another year in which they continue to flex their muscle both domestically and internationally.

“Korea’s chaebol dominate the Deals of the Year and so they should,” said one of our in-house judges.

“They were behind some of the most innovative, some of the most exciting deals on the market in 2008, but this isn’t to say that the biggest deals by value won. There are plenty of pitfalls in closing deals in a deflated market.

If you look at the winning deals, it is those deals that closed off the possibility that acquirers might get their fingers burnt in the long run, the deals which are the most market focused that took the prize.” ALB www.legalbusinessonline.com

417 Lee & Ko, Kim & Chang, Sewha Park & Goo

Capital Markets: Debt market

22,277

Bae, Kim & Lee

171 Kim & Chang, Norton Rose, Watson Farley Williams

Doosan- Ingersoll Rand acquisition finance

Y22 Parc1 Project

Legal advisors to Korean deals By value Name

Value Firms involved (US$m)

800 Bae Kim & Lee, Shin & Kim, Horizon Law Group

Eugene Corporation- Himart acquisition

1,600 Bae Kim & Lee, Yulchon, Lee & Ko

Kumho Asiana consortium- Korea Express acquisition

4,100 Bae Kim & Lee, Shin & Kim, Lee & Ko

Project finance Name of deal Hyundai Green Power Co. Ltd loan facility New Songdo International City development

Value Firms involved (US$m) 394 Kim & Chang 2,700 Kim & Chang, Bae Kim & Lee, Sewha Park & Goo

KEXIM ship financing

483 Bae Kim & Lee, Linklaters

Busan New Port Project Phase 2-3

950 Lee & Ko, Kim & Chang, Kim & Company, Linklaters

Kangnambeltway project financing

630 Lee & Ko, Kim & Chang

Structured finance & securitisation Name of deal

Value Firms involved (US$m)

Value Master 2008-1

300 Kim & Chang, Orrick

Global 2008 asset securitization

320 Kim & Chang, Simmons & Simmons, Horizon Law Group

Lotte Card FRN and SN offering

300 Kim & Chang, Shin & Kim, Orrick

Shinhan Bank RMBS & senior bond offering

500 Kim & Chang, Shin & Kim, Orrick, JSM

KEXIM Structured finance facility

400 Kim & Chang, Allen & Overy, Seward & Kissel

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FEATURE | Korean Deals of the Year >>

ALB

ASIAN LEGAL

BUSINESS

The winners

Capital Markets: Debt Market

Asset & Corporate finance Doosan- Ingersoll Rand acquisition finance

ALB

ASIAN LEGAL

BUSINESS

Complex cross-border financing and acquisition across 20 jurisdictions and 70 companies

ALB

ASIAN LEGAL

BUSINESS

SK Telecom- Hanaro Telecom Share sale & acquisition

Unique Regulation S, Rule 144A commercial paper offering

Competitive auction share sale attracts antitrust attention

Value US$3.9bn

Value US$2bn

Value US$1.2bn

Firms involved Bae Kim & Lee Kim & Chang Linklaters Paul Weiss Sullivan & Cromwell

Firms involved Allen & Overy Lee & Ko

Firms involved Baker & McKenzie Cleary Gottlieb Kim & Chang Shin & Kim Yulchon

The deal in brief • Korea Development Bank lent and arranged for a US$3.9bn senior secured loan facility for the global acquisition of the compact equipment business of Ingersoll-Rand Company by the Doosan group of companies • Facilities were divided into a US$2.9bn facility to an Irish holding company established for the purpose of the acquisition, with the proceeds of this facility subsequently used for equity injections, and inter-company loans to other holding companies established in Ireland and the US • Second facility, worth US$1bn was offered to the Doosan group and the proceeds of this facility were used for the equity injection in the holding companies • Acquisition involved either assets or shares of 70 companies located across more than 20 jurisdictions, complex security and guarantee structure was devised in order to overcome financial assistance and other restrictions in various jurisdictions • Was one of the initial transactions to finance Korean company’s acquisition of foreign target companies on global basis Our judges said:

“As one of the largest simultaneous financing and acquisitions of 2008, this deal stands out as a clear winner in this category. Having to strike a balance between the differing regulatory regimes across some 20 different jurisdictions would have been an enormous challenge, but the use dual financing facilities, as well as the creative use of offshore holding companies, ensured that these challenges were overcome”

42

Industrial Bank of Korea Commercial Paper programmes

Capital Markets: Equity Market

The deal in brief • Comprised of two projects: a euro-commercial paper notes offering of up to a maximum aggregate amount of US$1bn or its equivalent in alternative currencies under Regulation S, and a US-commercial paper notes offering up to a maximum aggregate amount of US$1bn or its equivalent in alternative currencies under Rule 144A • Helped Industrial Bank of Korea to plan and manage its liquidity operation through the timely creation of commercial paper programs that can be used in Euro market and US market, respectively • Issuer raised more than $US500m through both programmes and is utilising these programs very efficiently to raise funds promptly • Program is significant because it allows obtaining financing from both US and Europe financial markets of up to US$2bn despite global financial crisis Our judges said:

“In a market where it is extremely difficult to raise funds and even harder to do so using debt, this deal is a standout. The structuring of the deal, however, meant that the issuer not only had access to the US market, but the European market as well – this will set a path forward for future transactions of this kind in Korea”

ALB

ASIAN LEGAL

BUSINESS

The deal in brief • Consortium of nine sellers, comprising Texas Pacific Group, AIG, GIC, TVG and Newbridge Capital, sell their equity shares (representing approximately 38.89% of the total outstanding common shares in Hanaro Telecom Incorporated) to SK Telecom • Auction process (involving multiple bidders) was used and attracted interest from would-be purchasers in multiple jurisdictions • Nature and size of the company meant sale raised complex regulatory issues that needed to be decided prior to the completion of the auction process • Transaction was also complicated by a change in the Korean law and regulation pertaining to the telecommunications industry between the signing of the share purchase agreement and the closing Our judges said:

“Far from your average, vanilla transactions, this deal presented a number of pitfalls for counsel. Not only would the lawyers have had to deal with a competitive auction process, but would have also had to deal with regulatory complexities emanating from it – antitrust issues and regulatory approvals, not to mention tax issues, would have been the most challenging aspects of this deal. This deal truly deserves to be called the deal of the year in this category”

Asian Legal Business ISSUE 9.5

FEATURE | Korean Deals of the Year >>

ALB

ASIAN LEGAL

M&A C&M Co LBO The largest LBO by a Korean PE fund and the largest TMT M&A in Korea for 2008

Project finance ALB

ASIAN LEGAL

BUSINESS

Value US$2.3bn Firms involved Bae Kim & Lee Cleary Gottlieb Kim & Chang Lee & Ko Maples & Calder Shin & Kim Simpson Thacher & Bartlett Squire Sanders & Dempsey White & Case The deal in brief • Deal saw a consortium of private equity funds including MBK Partners, Macquarie Korea Opportunities Fund and Mirae Asset Partners complete a US$2.3bn leveraged buyout of C&M Co, the second-largest multisystem cable operator in Korea • Consortium acquired 95.6% of C&M from its founder Min-Joo Lee, his affiliates and Goldman Sachs Capital Partners following approval by the Korea Broadcasting Commission and the Ministry of Information & Communication, making it the first time a private equity fund has been permitted to acquire a controlling stake in a cable service provider • Deal was the largest LBO by a PE find in the Asia Pacific (excludign Japan & Australia) in 2008, the largest LBO by a Korea PE fund, the first club deal by a Korean PE fund and the largest TMT M&A in Korea in 2008 Our judges said:

“A standout deal and a clear winner in this category not only because it represented so many firsts, consider the market conditions in which the deal was struck and you can understand how significant it was. Aside from the regulatory approvals, which the market knows were hard to secure, it represents something like 80% of the total PE deal flow in Korea in 2008”

www.legalbusinessonline.com

New Songdo International City development

Structured finance & securitisation

ALB

ASIAN LEGAL

BUSINESS

BUSINESS

Multi-billion dollar financing deal for the city of the future

Value US$270m Firms involved Bae Kim & Lee Kim & Chang Sewha Park & Goo The deal in brief • Deal saw Shinhan Bank extend a US$2.7bn senior secured loan facility to New Songdo International City Development – a JV between the Gale Company and POSCO Engineering & Construction for the development of New Songdo International City on approximately 10,000 acres of reclaimed land located in Yeonsu-gu, along Incheon’s waterfront • It is located 40 miles south of Seoul and will be connected to Incheon International Airport by a seven-mile highway bridge • Project has an estimated total cost of approximately US$20bn, making it the largest private development project ever undertaken anywhere in the world • Deal required the balancing of the interests of a number of interested parties including central and local governments • All of these issues were required to be resolved prior to the commencement of the project so that the relevant assets could be provided as collateral for the lenders Our judges said:

“A watershed project finance deal in Korea.

Eco-city developments such as this often have many traps for lenders but in this deal it seems these have all been dealt with – a worthy winner”

Global 2008 asset securitiSation

ALB

ASIAN LEGAL

BUSINESS

A unique on-tier structured cross border ABS deal

Value US$320m Firms involved Horizon Law Group Kim & Chang Simmons & Simmons The deal in brief • Unlike typical cross-border ABS transactions, the issuance of the CDO securities in this deal was based on a one-tier structure • Substantial legal review and analysis was required in relation to this structure and the method of creating security interests over different kinds of underlying assets for ABS bondholder in a manner that complies with Korean law • Based on the credit facility provided by Hana Bank, the ABS bondholder engaged in a credit default swap transaction as a protection seller, based on the ABS bond issued by the domestic SPC, with the credit facility provider as the reference entity Our judges said:

“A really innovative deal. Not only is it unique in that it was structured differently from typical cross-border ABS transactions but that fact that the deal was structured so as to allow the credit facility to qualify as a guarantee under the ISDA Credit Derivative Definitions and comply with Korean law in a deflated market make it the standout”

43

FEATURE | Korean Deals of the Year >>

ALB

ASIAN LEGAL

BUSINESS

Liberalisation looks set to swell lawyer ranks

T

he number of lawyers practising in Korea is expected to double in the next seven years as the Korean government steps up moves to liberalise its legal services market in line with its obligations under the recent free trade agreement with the US. In 2007, the Korean bar association stated there were 10,176 attorneys registered to practise in Korea, of whom less than 200 were foreign. Both figures are expected to increase by as much as 20% in the years ahead due to the influx of foreign attorneys and changes to law school testing, which would see the admission of 2,000 new lawyers by 2012. These statistics do not bode well for domestic lawyers.

“The job market for lawyers is one of the most competitive in the world,” says a senior partner at one of Korea’s

44

biggest firms. “Because of the nature of transactions happening in Korea at the moment, there is no real need for counsel to be admitted here, so unless some of the younger lawyers are particularly brilliant, they may find themselves having to serve independently.” Of the lawyers who pass the Korean bar exam each year, only the

top 30–40% find gainful employment as state prosecutors or judges, or associates at the top seven law firms.

“It is really tough for lawyers at the moment,” the source said. “We see a lot of them having to resort to street-peddling and eventually falling into bankruptcy… many lose face and can’t go on.” ALB

Asian Legal Business ISSUE 9.5

feature | offshore >>

Offshore firms: riding out the economic storm Specialist firms are often the best at avoiding general downturns and offshore firms are no exception. Their diversity, both in terms of practice area and geographical location, means they continue to thrive

46

O

n paper it may seem like offshore law firms are up against it at the moment.

Not only do they, just like their onshore counterparts, have a global financial crisis to grapple with, they also have to deal with finger pointing from regulators across the world who are placing much of the blame for the current worldwide recession squarely with offshore jurisdictions.

But, in reality, things have never

looked better for offshore firms.

Instructions and referrals remain largely unaffected; many cite a distinct upturn in insolvency and restructuring matters involving offshore jurisdictions; and all claim to have more than enough work to keep them occupied as the BRIC plans implemented as long as 30 years ago begin to reap dividends. It seems the only thing offshore firms are struggling to keep up with is client demand.

Asian Legal Business ISSUE 9.5

feature | offshore >>

The global financial crisis: diversity key

Where onshore law firms have been badly hit by the global financial crisis, and have seen their head count and revenue figures slip, the situation confronting offshore firms is a little different. They too have their eye on their bottom lines, but many report the focus of their business development activities has shifted more to keeping up with client demand, with their appetite for offshore legal advice not waning despite the global recession.

“Our business is by nature cyclical,” says Michael Gagie, Hong Kong managing partner of Harney Westwood & Reigels. “In a downturn there will be work. There is a lot of activity on the restructuring side at the moment, as you would Michael Gagie, expect, with the prospect Harney Westwood of a spike in private equity & Reigels activity to come as well, but its probably fair to say that the offshore practices are strongest when everyone is making money.”

Frances Woo, the Hong Kong managing partner of Appelby, cites a similar trend and says that while work in some areas has dropped off, the work

“While corporate law matters may be slower as a result of the global recession, litigation is booming” Robert Briant, Conyers Dill & Pearman in litigation, work-outs, and insolvency & restructuring is more than enough to keep some firms going.

“There is certainly an overall reduction in instructions for new companies and structures, and a decline in the number of transactions coming to market from the US, the UK and Asia. But litigation is strong and our global funds team is busy with work-outs and restructuring,” she says.

Robert Briant, the British Virgin Islands (BVI) managing partner of www.legalbusinessonline.com

Conyers Dill & Pearman, agrees that litigation is busier than normal, and says that apart from the rise and fall of work by practice area, some jurisdictions are also shining more brightly than others at the moment.

“While corporate law matters may be slower as a result of the global recession, litigation is booming.

[Because this] is a global recession, certain parts of the world are busier than others and different opportunities arise in different parts of the world,” he says, singling out Asia as being particularly ebullient.

But while the focus of offshore firms has, in some respects, shifted away from their core business in favour of picking up some of the recession-related work on offer at the moment, Richard Collis, Conyers’ global managing partner, says that banking solely on the upturn in these areas may not make for a sound long-term strategy for some.

“Some offshore law firms will face a degree of downsizing – that is inevitable in a global recession,” he says.

“Some of them that found themselves in a niche, for example those that exclusively did securitisation work,

►► The Offshore world Name

Partners

Lawyers

Offices

Maples and Calder

66

222 BVI, Cayman, Dubai, Dublin, HK, Jersey, London

Appleby

55

165 Bermuda, BVI, Cayman, HK, Jersey, London, Mauritius, Zurich

Walkers

53

105 BVI, Cayman, Dubai, HK, Jersey, London, Singapore

Conyers

40

157 Anguilla, Bermuda, BVI, Cayman, Dubai, HK, London, Mauritius, Moscow, Sao Paolo, Singapore

Ogier

38

214 Auckland, Bahrain, BVI, Cayman, Dublin, Guernsey, HK, Jersey, London, Montevideo, Tokyo

Arendt & Medernach

32

250 Brussels, Dublin*, Dubai*, London*, Luxembourg, New York*

Homburger

31

103 Zurich

Carey Olsen

29

85 Guernsey, Jersey, London

Bedell Cristin

27

61 Dublin, Geneva, Guernsey, Jersey, London

Mourant du Feu & Jeune

26

95 Cayman, Guernsey, Jersey, London

Elvinger Hoss & Prussen

26

80 Luxembourg

Cains

17

30 Isle of Man, London, Singapore

Harneys

15

63 Anguilla, BVI, Cyprus**, Cayman, HK, London

Maitland Advisory

26

25 Cape Town, Cayman, Dublin, Isle of Man, Paris, London

Hassans

26

75 Gilbraltar, Madrid

Ozannes

20

61 Guernsey, Jersey

Triay & Triay

14

28 Marbella, Sotogrande

Dickinson Cruickshank

12

42 Isle of Man, London

Oostvogels Pfister Feyten

10

55 London, Luxembourg

Collas Day

8

22 Guernsey, London

This list does not purport to be exhaustive; accurate to February 2009 *Denotes representative office **Denotes formal alliance with local firm

47

feature | offshore >>

►► Onshore goes offshore UK-based firm Withers has made an unprecedented move, becoming the first onshore law firm to enter the offshore market after announcing that it will open in the British Virgin Islands (BVI).

The office – which will provide a range of cross-border services including corporate and trust disputes, insolvency & restructuring, funds, and banking & finance – will be staffed by litigation partner Jeremy Scott and corporate partner John Greenwood, both of whom will relocate from the firm’s London office.

Commenting on the move, Samantha Bradley, managing director of the firm’s Hong Kong office, said that it was motivated by a distinct upswing in insolvency & restructuring work involving offshore elements.

“Our clients, our key contacts on the ground and the firm have all noticed an increase in litigious work in the BVI. The latest statistics show that in 2004 there were some 550,000 companies incorporated in the BVI but now that figure is closer to something like 860,000. As business becomes more globalised, we expect to see more clients finding a BVI dimension to their international disputes.”

But do not expect Withers to be making an all-out assault on the offshore market. According to Bradley, the firm’s office in the BVI will be focusing on the niche area of international litigation, such as insolvency litigation and fraud and asset tracing.

“Our approach with this office is to focus on insolvency and disputes and is extremely targeted. We are responding to the needs of our international clients who find a BVI component to their litigation in London or New York and need joined up advice. We will continue to work closely with the local BVI law firms,” Bradley says.

48

either by design or by accident, will start to find holes in their capacity and now will be the time for them to address this. It probably won’t suffice for a firm to say, ‘We are solely looking to pick up the work in litigation and insolvency and restructuring that is emanating from the crisis.’ This drives specialisation and overdependence on one area and will create a problem Frances Woo, when markets rebound Appleby and work in core areas returns.”

Indeed, offshore firms have long known of the need to diversify their practices, with all the firms ALB interviewed for this report having devoted the greater part of a decade to finding this geographical and practice area balance.

BRIC and beyond

Brazil, Russia, India and China (known collectively as the ‘BRIC’) remain the focus for most offshore

see why offshore firms remain brazen about their operations despite the global financial crisis.

Collis says the past 15 years have been marked by BRIC clients’ increased appetite for offshore products, so much so that the firm found it necessary to open in Moscow and Mauritius (which is widely known as a hub for Indian clients) and Sao Paulo in the past year.

“We opened in Sao Paulo in March 2008, Moscow in April 2008 and Mauritius later in October and Sao Paulo in March 2009; all three openings were probably a long time coming,” he says. “We had noticed for sometime that our Latin American, Russian, including the CIS and India as well as those clients looking to do business in those regions were substantially increasing their use of offshore structures more than they perhaps had been in the past.”

Appleby, which along with Conyers, is the only offshore law firm to have offices in Mauritius, says that while the bulk of instructions it receives in Mauritius are India-related, there is a healthy demand

“We had noticed for sometime that our Latin American, Russian and CIS clients, as well as those from India, were really substantially increasing their offshore structures more than they perhaps had been in the past” John Collis, Conyers Dill & Pearman firms across the world – and rightly so according to lawyers.

The past 10 years in particular have seen a sea change in mainstream attitudes to offshore financial centres.

Their label as ‘tax havens’ and hotbeds of borderline illegal financial practices has dissipated, if not disappeared completely, and most realise their utility and importance in the world economy.

An attitude shift that is perfectly evidenced by their role as conduits for the ever-growing flow of capital between new world economies and the west and the explosion in the number of BRIC-owned offshore incorporated companies (the latest statistics indicate that as many as 80% of companies incorporated offshore are BRIC companies). In this context, it is easy to

for advice coming through the tiny island from Africa as well.

“We are seeing new jurisdictions emerging,” Appleby’s Woo says.

“Appleby was the first offshore firms to establish itself in Mauritius [and through this] develop a strong foothold in the African region.”

Evidence, comments from offshore lawyers suggest, that many opportunities lie outside the BRIC for offshore firms as lie within it. Last year, Ogier made the unprecedented move of becoming the first offshore firm to open offices outside the traditional offshore heartland by venturing into Bahrain, Tokyo and Auckland – moves which the firm’s chairman, Jonathan White, said were all about being on the ground where clients were and being Asian Legal Business ISSUE 9.5

Firm Profile

Harney Westwood & Riegels

Harneys: From BVI to Cayman… and beyond Whichever way you look at, 2008 was a stellar year for Harneys and according to the firm’s Hong Kong managing partner 2009 will be even better

I Michael Gagie

Harney Westwood & Riegels 1507 The Centre 99 Queen’s Road Central Central Hong Kong Michael Gagie, Partner Email: Michael.gagie@harneys.com Tel : +852 3607 5300

t has been a year of significant growth for Harneys, with the addition of both a Cayman Islands practice through its takeover of CS Gill & Co and Cypriot expertise through its close strategic alliance with Cyprus firm Aristodemou Loizides Yiolitis & Co (ALY).

Since early 2008, the firm has made up an unprecedented 12 new partners and brought in 2 more partners as lateral hires. Included in the more than 20 new lawyers also hired are a number of senior lawyers brought on to strengthen the firm’s BRIC focus. Amongst them, Indian lawyer Chetan Nagendra now heads up the firm’s India desk; native Russian speaker Marina Kozlova was brought in to support the firm’s already thriving Russia desk, and the hire of Horacio Woycik has strengthened the firm’s rapidly growing Latin America desk headed by Brazilian partner Marco Martins. The firm’s Hong Kong office has seen the elevation of Leon Mao to partner, and the hire of partner Paul Lau from a rival offshore law firm.

All moves which according to the firm’s Hong Kong managing partner, Michael Gagie make Harneys the offshore firm of choice in the region.

Harneys: Now in Cayman “2008 was a great year for us in terms of expanding our offering to better serve our clients needs,” he says. “We have probably been without peer in the British Virgin Islands (BVI) and with our move into Cayman we are looking to replicate our top tier BVI reputation in Cayman.”

The ability to offer advice on the laws of both offshore jurisdictions, it seems, has never been more important. “The ability to offer our clients seamless advice covering both jurisdictions is a tremendous boost for our practice and will enable us to compete more effectively in the market place,” says Gagie.

Building BRIC by BRIC In addition to its expansion into the Cayman Islands, Harneys made considerable strides executing its BRIC strategy. This commitment to clients in emerging economies was achieved most notably in 2008 through the completion of a full set of BRIC desks staffed by specialists in Asian, Latin American, Russian and Indian markets.

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“The BRIC countries are assuming increased importance not only because of some of the failures of western countries that the global financial crisis has exposed,” explains Gagie. “but there is a new generation of wealth creators coming through in these countries who are choosing to use offshore and to incorporate their businesses in either the BVI or Cayman.”

Similarly, the firm’s tie-up with ALY in Cyprus will serve Harneys clients in India as the addition of a Cyprus-based tax treaty will be a valuable resource for clients in Asia.

The Harneys competitive advantage Gagie says that Harneys differentiates itself from other offshore law firms in the market by providing the same high level of client service to all clients regardless of whether they are a Fortune 500 company or a local private company or individual—something which is of vital importance in an increasingly competitive Asian market.

“In Asia, we understand that speed of response, provision of real time advice and competitive pricing are key criteria for clients look for legal advisors. You could say these are even more important in light of the current economic climate.”

Moreover the firm’s commitment to recruiting senior lawyers well versed in the customs and culture of emerging economies like India and Russia means Harneys clients can access the best no matter which part of the world they are doing business in.

“A number of our recently recruited lawyers were targeted by us for their legal and linguistic backgrounds. We are working towards having full service teams of lawyers who themselves come from the jurisdictions in which our clients operate and who understand the local market requirements and conditions. Our recent hires of Chetan Nagendra, a senior Indian lawyer and Marina Kozlova, who joined our growing Russian practice, are good examples of this.”

So what’s next for Harneys? Gagie predicts 2009 will be another good year for the firm.

“We will continue to grow in 2009,” says Gagie. “We will deliver the same excellent service for Cayman that we offer clients across the world for BVI and look to strengthen our Hong Kong office by bringing on board a couple more lawyers with local language capability.”

Asian Legal Business ISSUE 9.5

Timing.

Timing.

Is a combination of awareness, responsiveness and action.

At Harneys we understand that timing is everything. That’s why the world’s leading law firms, financial institutions and corporates call on us when they need fast, accurate and commercially astute legal advice. With offices and affiliates in the British Virgin Islands, Cayman Islands, Hong Kong, and London, Harneys has jurisdictional expertise and business knowledge that spans the globe. Let us put it to work for you.

www.harneys.com

British Virgin Islands | Cayman Islands | Hong Kong | London

feature | offshore >>

able to respond to their demands in real time.

“In pursuit of our strategy, we felt it critically important to establish a strong presence in both the Middle East and Japanese markets so that we can provide the full range of Ogier’s services to our clients in their own time zone and in a manner that is responsive to local conditions and practices,” he said.

The firm’s Bahrain office is a JV with Two Seas Trust, which will work on the establishment of trust funds in the region. Chartered secretary Paul Perris, as general manager of Ogier

Bahrain and managing director of Two Seas Trust, will head both the office and the JV company. The Tokyo office, which is headed by former Deutsche Securities analyst Skip Hashimoto, will provide a link to the firm’s Hong Kong operation and integrate its Cayman and BVI experience for its Japanese clients.

Not to be outdone, both Conyers and Maples and Calder also have offices in the Gulf with Appleby’s Woo pointing out that they are monitoring events there closely with a view to opening there should client demand compel them to do so.

“The process of offshore firms taking on more jurisdictions is bound to continue and whether that be through mergers, tie ups or opening completely new offices we don’t know. But what we do know is that the process will not be scaled back” John Collis, Conyers Dill & Pearman

“We have announced our intent to open an office in the Gulf region and that opening is imminent,” Woo says.

Competition increases in key offshore financial centres

Much of the geographical diversification in the offshore world is both a function of the globalisation of legal practice and the increased competition that offshore firms are facing in their home jurisdictions. And while many of the top offshore firms have the capacity to advise on the laws of more than one offshore jurisdiction, even this is not enough to stave off the competitive pressures.

According to lawyers ALB spoke to, competition between offshore firms is most apparent in the more established offshore financial centres and is likely to remain that way in the near future.

“There will always be strong competition in the key offshore jurisdictions such as Bermuda, Cayman and Jersey,” Woo says.

Conyers’ Briant agrees with Woo, adding the British Virgin Islands (BVI)

Navigating offshore options can be tricky. Appleby offers our clients skilled advice and a depth of knowledge across our offshore jurisdictions, guiding you to the best jurisdiction to meet your business needs. Our Hong Kong office provides a strong link and greater options for Asian, Indian and African investment. Experienced counsel providing trusted guidance. Appleby.

Bermuda British Virgin Islands Cayman Islands Hong Kong Jersey London Mauritius Zurich

For further information, please contact: Frances Woo Managing Partner, Hong Kong Tel: +852 2523 8123 Email: fwoo@applebyglobal.com

THE RIGHT PEOPLE. THE RIGHT PLACES. THE RIGHT GUIDANCE. Offshore Legal, Fiduciary & Administration Services

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applebyglobal.com

Asian Legal Business ISSUE 9.5 ALB_guidance_right.indd 1

5/8/2009 10:29:27 AM

feature | offshore >>

to his list while noting that increased competition in these locations often translates into fierce competition in places like London and Hong Kong.

“The competition between offshore law firms is most intense in both the BVI and Cayman, where virtually all offshore law firms have offices,” he says. “This competition is then reflected in the onshore city offices of such firms, such as London and Hong Kong, where there is competition by the law firms providing advice on BVI and Cayman law.”

Collis believes that competition will only increase in the near future as more offshore firms seek to advise on the laws of more than one offshore jurisdiction.

“It’s very rare to find an offshore firm who only advises on the laws of one jurisdiction anymore,” he says. “The process of offshore firms taking on more jurisdictions is bound to continue and whether that be through mergers, tie ups or opening completely new offices we don’t know. But what we do know is that the process won’t be scaled back and all offshore law firms are looking closely at their core markets to see where the competition will come from.”

However, competition in offshore jurisdictions need not only come from other offshore firms.

Earlier this year, UK firm Withers announced that it would be opening John Collis, Conyers an office in the BVI Dill & Pearman making it the only onshore firm to practice offshore law (see box on p48). Far from crying foul, however, the general consensus from offshore firms seems to be that the move will only prove beneficial for offshore jurisdictions, and aid in raising their international profile.

“We look forward to the opening of Withers’ office in the BVI,” Briant says. “We welcome the competition and believe that it will only enhance the reputation of the jurisdiction as well as the offshore product.”

But that is about where the spirit of cooperation stops. Lawyers remain coy on whether this move is the start of a wholesale assault on the offshore law firm world, saying instead that the need for offshore firms would remain even if their onshore counterparts were www.legalbusinessonline.com

In addition to Ogier both Conyers and Maples and Calder also have offices in the Gulf with Appleby’s Woo pointing out that her firm is monitoring events there closely with a view to opening there should client demand compel them to do so to enter the market en masse.

“I am not certain that there is such a trend,” Briant says. “The onshore firms have not opened up offices in the offshore jurisdictions as a result of the high level of legal services already provided in these places. Further, it is unlikely that an onshore firm will use the offshore office of its onshore competitor. It is the ability of the offshore law firms to cater to the requirements of all the onshore law firms

which allows the offshore firms to exist.”

Woo concurs adding that should such a situation eventuate, onshore firms will find the going tough. “As markets contract, firms will consider other potential opportunities for growth, but onshore firms will face inherent difficulties when trying to enter an established offshore jurisdiction to practice offshore law,” she says.

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feature | offshore >>

Going straight to the client

Offshore practice development has come a long way, with clients, especially those in Asia far more comfortable instructing their offshore lawyers directly, than they perhaps were in the past, so much so that many have cut onshore lawyers out of the picture all together.

And, its a change that says as much about the development and growth in reputation of offshore legal practice as a discrete discipline, as it does about the changes in the client mindset, but its not without its own problems. This circumvention of the traditional flow of instructions is causing waves and debate within the legal profession.

“It’s true that we’ve seen a growing trend where the ultimate client is instructing us directly, particularly where such client is already familiar with offshore jurisdictions and structures,” says the Hong Kong managing partner at one offshore firms who preferred not to be named.

ALB’s source, who receives a good mix of briefs from both onshore firms

and in-house departments, adds that this trend is symbiotic. “We’re typically the second port of call for the client with the first port of call being a local legal services provider. However, if we’ve worked closely with a client for a number of years that client may well liaise directly with us. This doesn’t often bother the local provider as it goes both ways.”

the end of the day, if a client comes to us directly then we can’t very well turn them away. We have good relationships with the onshore firms and will refer non-offshore related work to them, so it’s not a question of the onshore law firms being cut out of the loop.”

However, other offshore lawyers ALB spoke to say that this trend – which can result in onshore firms briefing their

“We have good relationships with the onshore firms and will refer non-offshore related work to them, so it’s not a question of the onshore law firms being cut out of the loop” Offshore law firm managing partner But the partner contends that onshore firms claims that they are being unfairly cut out of the process are not warranted. “We have seen a number of onshore law firms become quite irritated at this process but, at

offshore counterparts late in the deal, so that the latter is unable to form a strong relationship with the client – will eventuate whether the offshore firms are receiving direct instructions or not. ALB

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Asian Legal Business ISSUE 9.5

profile | managing partner >>

Jai Pathak tells ALB why there is much more to his firm in Asia than just the subcontinent

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Asian Legal Business ISSUE 9.5

profile | managing partner >>

Clients only give you one opportunity and you have to capitalise on that.”

Competition, relationships and liberalisation

alb 2009 managing partnerS series

Jai Pathak, Gibson Dunn & Crutcher:

To India, ASEAN and beyond

W

hen Gibson Dunn & Crutcher (Gibson Dunn) announced that it had taken Jai Pathak and, three months later, followed it up by taking three of his former fellow partners, Emad Khalil, John Viverito and Saptak Santra, away from rival US firm Jones Day to launch its first and only Asian office in Singapore in May 2008 it was obvious to many where the firm’s priorities lay- south east Asia: the booming yet embryonic emerging economies scattered throughout the region and, of course, India. Pathak was hailed by many, including ALB at the time, to be the epitome, if not the personification of, these goals.

But while the firm’s work in India- its representation of some of India’s largest conglomerates and its work for international blue-chip clients in their investment in the subcontinent, has garnered the most attention, Pathak tells ALB that there is much more to Gibson Dunn in Asia than just India.

The odd one out Pathak readily admits that Gibson Dunn’s Asian strategy may be perceived as a little odd. It stands, to this day, as the only major international firm operating in the region to have established Singapore as its hub in Asia. It doesn’t have an office in Greater China- on the Mainland or in Hong Kong and its only other office that could be loosely termed as being part of the strategy in the extended region is in Dubai. But, according to Pathak, the single office presence was just the way it was planned.

“Asia is vitally important to the firm’s global strategy. But when we talk about expanding in Asia it’s not a case of expanding all over the entire continent. We prudently chose to focus on where the immediate needs of our clients are, and where we could add initial fundamental value. Thus far this has involved assisting clients in expanding their operations across Asia’s southern belt- which covers South East Asia, the subcontinent and goes as far as the Middle East.” www.legalbusinessonline.com

But Pathak is all too aware that clients needs are dynamic and for many of them the opportunities on offer in China and South Korea are becoming too good to ignore.

For Pathak, this means that the writing is on the wall for the firm in Asia and northward expansion is a reality. “You can’t cover Asia without being in China so we know we have to be there sooner rather than later. That is something we are looking at but we will take our time to find the right team to work with our clients.”

Expansion But we shouldn’t expect to see Gibson Dunn commence operations in North Asia simply on the back of increasing client work.

Pathak says that even if client demand is compelling, for a law firm to open an office in a new location a high level of deliberation and pragmatism is required. In the current economic environment, for a firm to open an office in a new jurisdiction only to see it close soon after for want at the outset of proper planning and resources is an anathema.

“If clients are pressuring you, that in itself may well be a compelling reason to open new offices,” he says. “But just how do you put this into action? This is often a question that is not given the proper consideration.”

The answer is all about people, skill sets and value add, he says, giving ALB a glimpse into the deliberative process in play at Gibson Dunn. “Law firms sell people and their unique talent and skills, and in a competitive environment like Asia, especially in China, this is the key. We would likely start with a small team of key people on the ground initially which fulfil those requirements and to then build a critical mass around this core.”

Selecting the best quality personnel is the most vital ingredient in ensuring a good return on investment. “New offices and regional expansion have to be long term plays. In times like these when you sink in capital you need the people you bring on board to be the best.

Gibson Dunn is considered by many in the legal fraternity to be among only a handful of US law firms to make any prospective Indian venture a success. The others which are thought to be in the same category are Pathak’s former firm Jones Day, Latham & Watkins, Dorsey & Whitney and Baker & McKenzie. And while all are usually competing for the coveted international advisory roles on many of India’s largest transactions, Pathak says the relationship between all is not as cut-throat as people perceive.

“The competition is at times fierce, yes, but India affords huge opportunities and there is more than enough to go around. I continue to have good friends among what are now my former colleagues at Jones Day, and our other competitor firms.”

And while all law firms are expected to open in India if the regulations currently prohibiting them from doing so are relaxed, Pathak suggests that market opening may not be as close as some are predicting.

“Liberalisation of the legal services industry in India is a complex and sensitive question,” says Pathak. “Of course we would certainly consider opening in India if the client needs are there and if the applicable local regulation permit us to do so but I don’t think opening of that legal market is as imminent as we given to believe in the press. I’m not sure legal market liberalisation would merit a high rating on the list of things to do for Indian legislators and regulators in current circumstances.”

In the meantime, Pathak says that Gibson Dunn is able to cover India through various offices, primarily Singapore, with its lawyers frequently spending time on the ground in India and working closely with a number of Indian law firms. He says the firm does not have or believe in establishing an exclusive relationship with Indian law firms- as UK firms Clifford Chance, Allen & Overy and Linklaters have all done. Instead, Gibson Dunn prefers to instruct firms which are best able to deal with a particular transaction or litigation matter regardless of their size.

“Working with Indian law firms for us is a horses for courses proposition,” he says. “Our India-focused lawyers in London, New York, Los Angeles and Singapore have their own lawyer relationships in India with whom they are familiar, but essentially we are looking for a firm which can best fulfil what our clients need; this can be the largest firms in the country, a mid-size one, a firm with only two or three lawyers or even sole practitioners.”

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FEATURE | Chinese FDI >>

China FDI: Two-way street Outbound deals like Sinosteel and Chinalco are grabbing the headlines, but let’s not forget that China is still a leading recipient of FDI. ALB reports

A

s lawyers ponder Hunan Valin Iron & Steel Group’s A$1.2bn investment in Fortescue Metals or Chinalco’s US$19.5bn courting of Rio Tinto, there is no doubting the potency of the continuing outbound Chinese FDI behemoth. However, Chinese FDI is not a one-way street and firms are still anticipating strong inbound activity.

Greenfields investment

M&A is the type of FDI which generally attracts the most discussion, but there are also other forms which also warrant attention, such as franchising and greenfield investment.

Stanley Jia, managing partner of Baker & McKenzie's Beijing office, says there are several drivers for greenfield investments in China, which could take the structure of wholly-owned foreign enterprises as well as joint ventures.

“A greenfield investment is attractive to those foreign investors who would like to avoid inheriting legacy issues 58

and historical liabilities of an M&A target,” he says. “Whether a foreign investor would consider greenfield to be a more suitable investment option will depend on how steep start-up costs are as compared to acquisition costs, the importance of having an already-established sales and distribution networks, and whether there is a tight timeline for starting up the business.”

Another significant Stanley Jia, Baker & McKenzie type of FDI into China, says Zhang Danian, managing partner of Baker & McKenzie’s Shanghai office, is franchising or licensing agreements.

“This is attractive for companies that are interested in building brand recognition without the need to invest considerable manpower or capital in a foreign jurisdiction, especially if companies are able to work through concerns of possible IP infringement,” he says. “This will be

an attractive means of FDI this year, especially for foreign companies hesitant to invest in a new market during volatile economic times.”

Strategic investment

Outbound Chinese investment has captured headlines across the region in recent times – but has the tide of work shifted directions for firms? “There is not so much a shift of work towards China outbound investment, but rather more attention given to it,” says Tao Jingzhou, partner at Jones Day in Beijing. “While inbound investment has been going on for a long time, outbound investment activities in recent times – such as Chinalco, Minmetals and Lenovo – have received much attention due to their novelty and large values.

Indeed for some firms, outbound Chinese investment is nothing new.

“For our firm, this is not a shift,” Jia says. “We have already been advising Chinese clients with their investments abroad for a number of years now.”

Asian Legal Business ISSUE 9.5

FEATURE | Chinese FDI >>

What has changed, perhaps, is the volume of work. “The volume and size of overseas investments by Chinese companies will definitely continue to increase,” Jia says. “This is just in line with the Chinese government's policy of encouraging Chinese companies to ‘go global’ and invest overseas. In addition, compared to their western counterparts, many Chinese companies are in much better financial shape and better equipped to take advantage of the low valuations of targets now.”

Outbound Chinese investment is beginning to take a strategic path.

“Chinese companies have been making outbound investments for the purposes of gaining brand recognition as well as access to overseas distribution networks and technological knowhow in the technology and automotive sectors,” Jia says. “In the technology sector, notable transactions include Lenovo's acquisition of IBM’s personal computer division in 2005. More recently, Beijing West Industries announced that it would acquire the US-based Delphi Corporation’s global suspension and brakes business, giving the Chinese automaker access to Delphi's patents and markets.”

Shift in balance

Lawyers advising on inbound investment have found themselves on a new playing field.

“For a start, foreign companies who used to be cash rich are now finding their financial resources drying up; two, there is often a discrepancy

The China-Australia connection

One country that lies directly in the path of the outbound China investment tidal wave is Australia. The sheer size of China’s acquisitive power means that inbound FDI from Australia to China is dwarfed by the outbound stream from China to Australia, says Mallesons partner Stephen Minns. And while the level of outbound FDI is on the rise, he says that Stephen Minns, Mallesons Stephen the inbound work has Jacques been more modest.

“Australian investment is going into a whole range of industries – manufacturing, consumer products, financial services, for example,” he says.

Outbound investment from China into Australia has been almost exclusively in the resources sector. “Certainly the outbound work is a lot more significant than what it was even a year ago, and the importance of resources [for China] and the decline in prices has made Australian assets more attractive,” he says. And while there has been some uncertainty among purchasers about the right time to buy and some occasionally unrealistic valuations from vendors, there is no evidence of a stalemate between buyers and sellers.

“The Chinese are definitely interested in investing now, and they’re not about to wait,” Minns says.

Waiting, however, is not always a matter of choice, with the ultimate

“It is clear that the PRC authorities will take concerns of small and medium competitors as well as any possible threat to Chinese consumers very seriously” Zhang Danian, Baker & McKenzie between Chinese and foreign parties in their value assessment of the same Chinese assets; and three, the recent awareness of China’s huge market potential has put [Chinese parties] in a position to impose conditions in a deal,” Tao says. “Only five years ago, the roles were the reverse and it was the foreign company that had the upper-hand.

These factors cause renegotiation or sometimes the end of negotiations.” www.legalbusinessonline.com

approval usually resting with Australian treasurer Wayne Swan and the Foreign Investment Review Board (FIRB), which is currently reviewing a backlog of highly significant proposed deals (see box). “It’s clear that the government wants to be comfortable that Australian companies continue to operate independently,” Minns says.

The challenge for legal advisers is to structure deals in a way that reflects

►► The adventures of Australia’s FIRB

Growing Chinese interest in the Australian resource sector has created a backlog of work for the Foreign Investment Review Board (FIRB), which examines and rules on proposals by foreign interests to undertake direct investment.

March: FIRB approves subscription of new shares in Fortescue Metals Group by Hunan Valin Iron & Steel Group, a China-based manufacturer of steel pipes and related products. The deal will see Valin pay A$1.2bn to increase its stake in Fortescue to 17%.

Present: China Minmetals’ revised bid for OZ Minerals’ assets still under consideration by FIRB at time of press. Original bid was rejected on 27 March on “national security” grounds, with particular emphasis on fact that OZ Minerals’ Prominent Hill mine in South Australia was in relative proximity to weapons testing range used

by Australian Defence Department.

FIRB currently reviewing proposal which would see Chinalco pay US$19.5bn to increase its stake in Rio Tinto to18% Also under review at time of press is Chinese Anshan Steel’s proposed investment in Australia-based Gindalbie Metals.

this requirement – not an easy feat and one which requires some layers of complexity.

“There is a strong desire on the part of the Chinese companies to understand these regulatory requirements so that their deals can go ahead,” Minns says, describing this as one of the most important parts of his work. The issue of protecting national interest, of course, is not limited to Australia. China also vets foreign investment and recently vetoed a bid

by Coca-Cola to take control of China Huiyuan Juice, China’s biggest juice maker, a decision that was seen by some commentators as a reflection of renewed Chinese nationalism and a corresponding aversion to large scale foreign investment.

However, Zhang says that there was more to the decision than simply sentiment alone: “What the Coke/Huiyuan rejection shows is that government authorities will increasingly vet proposed foreign investments thoroughly on both national security and antitrust grounds. In addition, it is clear that the PRC authorities will take concerns of small and medium competitors as well as any possible threat to Chinese consumers very seriously in determining whether to grant antitrust approval,” he says. ALB 59

FEATURE | ALB FDI Series Part 1: China >>

China FDI Q&A

China FDI: Will 2009 be when the dragon economy wakes?

Loo Choon Chiaw

Loo & Partners LLP 88 Amoy Street, Level Three, Singapore 069907 Tel : (65) 6322-2288 | Fax : (65) 6534-0833 Email : ccloo@loopartners.com.sg Website: www.loopartners.com.sg

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ALB: It seemed like only yesterday that when we spoke of any China direct foreign investment (FDI), we were only referring to investments into China, but this trend has been reversed over the last few years, now it has been all about Chinese outbound investment.

LCC: I certainly agree with your general observations. Since the early-80s, the PRC has been the biggest beneficiary of FDIs, which have brought advanced technology and latest know-how into the PRC. Recently, there has been a fall in FDI inflows, which ended three decades of rapid growth in FDI inflows to the PRC. A survey of U.S. companies in the PRC published by the American Chamber of Commerce in China on 10 March 2009 found that 39% of the respondents were either postponing or had cancelled planned investments this year, while 21% indicated that they would shrink their China work force. Thus, even the PRC is not totally immune to the adverse impact of the global financial crisis (GFC).

The statistics clearly confirm that the trend will soon be reversed as the PRC enterprises begin to venture abroad. The numbers released by the PRC Ministry of Commerce (MOFCOM) (商务部) on the total amount of PRC out-bound FDIs: USD2.5 billion in 2002, and USD52.1 billion in 2008, speak for themselves.

ALB: What are the reasons behind the shift and how much more of this can we expect to see in 2009?

LCC: There is a host of reasons behind the pendulum swing. To start with, the enterprises in the PRC are relatively less exposed to the sub-prime crisis. There is an abundance of lowly-geared, well capitalised and well managed enterprises in the PRC. The RMB has been strong. The current GFC has therefore presented a window of opportunities for these PRC enterprises to exploit the low market value of quality businesses and assets abroad as their oversea counterparts are busy deleveraging and in great need of refinancing.

It is noteworthy that the PRC Government has also shown its strong support behind the internationalisation drive of the PRC enterprises via the promulgation of new regulations. Thus, the MOFCOM has issued new regulations on 16 March 2009 (“16 March Regulations”) primarily designed to encourage PRC enterprises to go international.

Under the new regulations, the MOFCOM will only review any application by a PRC enterprise for an oversea investment in excess of USD100 million or where the proposed investment relates to special purposes. When one extrapolates from the relevant statistics in 2008, it has been estimated that approximately 85% of such oversea investment applications shall be processed at the local commerce administration at the provincial level (省级商 务部主管部门). Furthermore, the timeline to process an oversea investment application has been greatly shortened. The review procedures have also been simplified and streamlined.

On any account, the 16 March Regulations shall greatly speed up the approval process for out-bound FDIs by the PRC enterprises, thereby helping to accelerate the internationalisation drive of these enterprises.

Recently, the PRC National Development and Reform Commission (发改委) predicted a 13.2 % growth in total quantum of the PRC out-bound FDIs over the 2008 number (which as mentioned earlier, stood at USD 52.1 billion) notwithstanding the negative impact of the GFC. ALB: How did the PRC MOFCOM justify its rejection of Coke’s proposed buyout of Huiyuan?

LCC: The MOFCOM has stated that its rejection of the proposed buyout by Coke (可口可乐) of Huiyuan (汇源) was based on its concerns that the proposed buyout, if to be proceeded with, would cause an adverse impact on market competition and might restrict the healthy development of the beverage industry as a whole.

It is not in dispute that at the material time, both Coke and Huiyuan held massive shares in the PRC domestic market, namely, Coke had some 50% market share of the carbonated drinks sector; and Huiyuan, on the other hand, had 46% and 39.8% market share, respectively, of the pure fruits and medium concentration beverages sectors. The MOFCOM thus concluded that the proposed buyout, if permitted, would lead to market monopolies. It was of the view that not only would the proposed buyout, if effected, create unfavorable conditions for other local beverage manufacturers, small and medium-sized ones in particular, it would also hurt the interests of both the consumers and the fruit farmers.

Furthermore, the MOFCOM held the view that if the acquisition were approved, the Asian Legal Business ISSUE 9.5

FEATURE | ALB FDI Series Part 1: China >>

ALB discusses with Loo Choon Chiaw, Loo & Partners LLP controlling power of Coke over the juice market would be markedly increased so that other companies would be incapable of entering it.

ALB: What are your views on MOFCOM’s ruling?

LCC: The MOFCOM is a market regulator and has a duty to discharge its responsibilities. Prima facie, its decision to ban the Coke’s buyout of Huiyuan was in line with the PRC AntiMonopoly Law 2007, which came into effect on 1 August 2008 (the “AML”)(反垄断法), which has its ultimate goal in the maintenance of fair play in the marketplace and the protection of the overall interests of all parties concerned.

Critics of the ruling have raised serious concerns on the sweeping nature of Article 27(6) of the AML, which empowers the MOFCOM, when making a ruling on a matter, to take into account any important factor which may have an impact on market competition which MOFCOM deems fit (认为 应当考虑的影响市场竞争的其他因素).

Be that as it may, on the surface, the prescribed procedures, in strict compliance with the AML， have been fully followed in the review process. One could only make any objective and fair critique on the MOFCOM’s ruling if one were furnished with the same information as those before the MOFCOM at the material time, thereby placing one in the same factual matrix as the MOFCOM was.

ALB: What about government intervention in relation to Chinese outbound investments, for example, Australia’s blocking of China Minmetals’ acquisition?

LCC: Australian Treasurer Wayne Swan delivered a blow to Minmetals’ proposed USD1.7 billion acquisition of the world’s second-largest zinc producer when he said the state-owned company would not be allowed to buy Oz Minerals’ Prominent Hill mine in the Woomera Prohibited Area, a military weapons testing range.

Following the rejection, Minmetals put up a revised offer, which was approved by Swan on 23 April 2009. It is noteworthy that the approval excludes, amongst others, the Prominent Hill mine.

The approval was also made conditional upon Minmetals’ undertakings to use mostly Australian managers, price products produced

by OZ Assets in Australia at arms-length basis, comply with industrial relations law, honour employee entitlements, to expand production www.legalbusinessonline.com

at some sites and to support Indigenous Australian communities.

As emphasised by Swan, the undertakings were designed to protect around 2,000 Australian jobs and ensure consistency with Australia’s national interest principles in accordance with the Foreign Acquisitions and takeovers Act 1975.

ALB: What are your views on the Minmetal’s acquisition?

LCC: This case is perhaps unique as the initial rejection was purportedly made on national security ground, which no sovereign country would look upon lightly.

Swan when, approving Minmetals’ revised offer, had no qualms in stating expressly that the conditions imposed on Minmetals were design to protect Australian jobs and to safeguard Australia’s national interest in accordance with Australian law.

I find Swan’s candidness refreshing. It will be interesting to see how the Australian Regulators will deal with Chinalco’s (中国铝业) proposed investment of USD19.5 billion in Rio Tinto!

ALB: Many in the industry expect FDI out of China to remain high. Would the intitiative be from the private public sectors? Are we likely to see more interests in one sector of the economy than another?

LCC: The FDIs to be undertaken by the PRC enterprises would continue to be dominated by the PRC state-owned enterprises (SOEs).

These are the enterprises with a deep pocket.

Many of them possess a strong management team led by a dynamic and ambitious Chairman or CEO, who has an international exposure. These SOEs shall be in the pursuit of oil and gas, minerals and other natural resources abroad to ensure the steady supply of energy, raw materials and processed commodities essential to the PRC’s economic independence and political stability.

ALB: Despite high levels of investment into the PRC, many still feel that elements of the regulatory regime in China are still found wanting in key areas. Can you identify some of them?

LCC: Foreign investors have been criticising the PRC for the deficiencies of its regulatory regime since the early 80s. Much water has flowed under the bridge since then. Although things have improved substantially, foreign investors

still feel that the PRC fails to provide them with an equal access to the market and a level playing field for them to carry on their businesses in the PRC. Serious concerns have regularly been raised in several areas, including: (1) inadequate protection of intellectual property rights; (2) the unfair treatment frequently received by foreign-invested firms when they bid for public procurement projects; (3) the restriction imposed on foreign investment in a wide range of sectors, eg, the petrochemical sector; (4) the lack of transparency in rule-making. Recently and since the Coke’s failed buyout of Huiyuan, serious reservations have also been levied against the AML over its potential for abuse by over-zealous officials at the MOFCOM in view of the wide discretionary power vested in MOFCOM by virtue of the sweeping provisions of Article 27(6).

ALB: Are the PRC authorities aware of these deficiencies? Have measures been taken to improve things on this front?

LCC: The PRC authorities are certainly aware of the deficiencies. They also realize that in the absence of any improvement, there will be a further decline in the quantum of the inbound FDIs, which will in turn adversely affect their long-term plan to channel more FDIs into the relatively underdeveloped areas in the western and central regions.

To improve investment conditions, the MOFCOM via its circular on “further improving examination and approval of foreign investments” (进一步改进外商投资 审批工作的通知) dated 5 March 2009 (the “5 March Circular”) has streamlined the approval process for in-bound FDIs. It has also empowered the local competent commercial authority (地方商务主管部门) to process an FDI application of up to USD100 million.

Like the 16 March Regulations, the 5 March Circular is expected, to greatly speed up the approval process for in-bound FDIs. ALB: As a specialist legal practitioner advising on PRC matters, how do you feel about their deficiencies?

LCC: The lack of transparency in the judicial decision making coupled with the vagueness or ‘fuzziness’, a term recently used by the Economist Intelligence Unit when reviewing the legal and regulatory risk of doing business in the PRC, ofsome of the PRC legislations have made the life of many legal practitioners who advise on such matters very difficult indeed!

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Law Awards 2009 ALB China Law Awards

deals of the year

T

►► COUNTRY GARDEN CONVERTIBLE BOND OFFERING

DEBT MARKET DEAL OF THE YEAR WINNER

his year, as last, the ALB China Law Awards attracted hundreds of the best and most successful legal and business minds in the country. New this year, though, was the sheer diversity of firms appearing on the winners list.

More than ever before, the awards managed to recognise the strength in depth that the Chinese profession now has. Firms that are still comparatively unknown outside the country– JunZeJun, Shu Jin and Solton, for example – were deserving winners this year for their provincial and specialist practices. Meanwhile, international firms with modest China operations like Wachtell Lipton and Milbank joined the US and UK heavyweights like Skadden and Clifford Chance on the list of deals winners. And of course domestic powerhouses like Dacheng and Grandall featured strongly.

Perennial finalists and winners King & Wood and Jun He once again vied for top honours, and King & Wood’s extremely strong showing on headline deals like China Oilfield Services Acquisition of Awilco Offshore and Central Asia-China Gas Pipeline won over the judges.

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►► ALB China Law Awards 2009 – the big winners Chinese firms

Firms: Commerce & Finance; Conyers Dill & Pearman; Jingtian & Gongcheng; Linklaters; Sidley Austin;

No. of awards

Jingtian & Gongcheng

4

Jun He

4

King & Wood

4

Commerce & Finance

2

International firms Freshfields

4

Clifford Chance

3

Linklaters

3

Sullivan & Cromwell

3

Baker & McKenzie

2

Conyers Dill & Pearman

2

Deacons

2

Banks, in-house teams and accountants JPMorgan

5

CICC

3

China Telecom

2

Citi

2

Ernst & Young

2

Macquarie

2

PwC

2

Banks: Merrill Lynch Accountants: PwC FINALISTS CHINA MERCHANTS HOLDINGS SENIOR NOTES OFFERING JIANGXI COPPER BOND ISSUANCE Ministry Of Railways Corporate Bond Offering Nine Dragon Senior Notes Offering; Shanda Interactive Convertible Senior Notes Offering

ENERGY & RESOURCES DEAL OF THE YEAR WINNER

►► CHINA OILFIELD SERVICES ACQUISITION OF AWILCO OFFSHORE

Firms: Clifford Chance; Jingtian & Gongcheng; King & Wood; White & Case; WongPartnership Banks: CICC; JPMorgan FINALISTS CENTRAL ASIA-CHINA GAS PIPELINE CHINA COAL ENERGY IPO CHINA GUANGDONG NUCLEAR POWER CHINALCO ACQUISITION OF STAKE IN RIO TINTO

EQUITY MARKET DEAL OF THE YEAR WINNER

►► CHINA RAILWAY CONSTRUCTION CORP IPO

Firms: Baker & McKenzie; DeHeng Law Offices; Freshfields; Jingtian & Gongcheng Banks: Citic; Citi; Macquarie Accountants: Ernst & Young Asian Legal Business ISSUE 9.5

feature | ALB Law Awards >>

Awards season is upon us again, so here is the complete list of winners from this year’s ALB China Law Awards as well as all the contenders for prizes in Japan and Southeast Asia

FINALISTS CHINA COAL ENERGY IPO CHINA SOUTH LOCOMOTIVE & ROLLING STOCK IPO JINDUICHENG MOLYBDENUM A-SHARE IPO RENHE COMMERCIAL HOLDINGS IPO SHANDONG CHENMING PAPER HOLDINGS IPO XTEP INTERNATIONAL HOLDINGS IPO

M&A DEAL OF THE YEAR WINNER

Firms: Allen & Overy; Deacons; Harneys; Jun He; Maples and Calder; Orrick, Herrington & Sutcliffe; Paul Hastings; Walkers; Zhong Lun Bank: JPMorgan Accountants: PwC FINALISTS COUNTRY GARDEN CONVERTIBLE BOND OFFERING FRANSHION PROPERTIES ACQUISITION OF CHINA JIN MAO POLY REAL ESTATE BOND ISSUANCE VANKE CORPORATE BONDS ISSUANCE

►► CHINALCO ACQUISITION OF STAKE IN RIO TINTO

Firms: Allen Arthur Robinson; Cleary Gottlieb; Clifford Chance; Fried Frank; Haiwen & Partners; Linklaters; Mallesons Stephen Jaques; Simpson Thacher & Bartlett; Sullivan & Cromwell; Wachtell Lipton

INTERNATIONAL DEALMAKER OF THE YEAR

Banks: CICC; Credit Suisse; JPMorgan; Macquarie; Morgan Stanley Accountants: Ernst & Young

Chun Wei, Sullivan & Cromwell

FINALISTS CHINA HUANENG ACQUISITION OF TUAS POWER CHINA MERCHANTS BANK ACQUISITION OF WING LUNG BANK CHINA NETCOM/UNICOM/TELECOM RESTRUCTURE CHINA OILFIELD SERVICES ACQUISITION OF AWILCO OFFSHORE COCA-COLA ACQUISITION OF HUIYUAN JUICE SINOSTEEL ACQUISITION OF MIDWEST

WINNER FINALISTS Paul Chow, Linklaters Paul Deemer, Vinson & Elkins Rupert Li, Clifford Chance Teresa Ko, Freshfields Bruckhaus Deringer

WINNER

►► CENTRAL ASIA-CHINA GAS PIPELINE

Firms: Baker & McKenzie; Clifford Chance; Freshfields;

GRATA; King & Wood

Banks: Bank of China; China Development Bank FINALISTS CHINA GUANGDONG NUCLEAR POWER CHINA HUANENG ACQUISITION OF TUAS POWER COSCO PACIFIC GREEK PORTS CONCESSION

CHINA DEALMAKER OF THE YEAR David Liu Dali, Jun He

FINALISTS Cui Liguo, Guantao Guo Guiyang, King & Wood Shuai Tianlong, Jingtian & Gongcheng Wang Weidong, Grandall Legal Group (Beijing) Yan Yu, Jia Yuan

WINNER

►► ASIA PACIFIC LAND ACQUISITION OF THE CENTER IN SHANGHAI www.legalbusinessonline.com

WINNER Industrial and Commercial Bank of China (ICBC)

FINALISTS Bank of China China Development Bank China Merchants Bank Guotai Junan Securities Société Générale

INVESTMENT BANK IN-HOUSE TEAM OF THE YEAR WINNER JPMorgan BOC International (China) China International Capital Corporation (CICC) Goldman Sachs Morgan Stanley UBS

CHINA LEGAL CAREER AWARD FOREIGN COMPANY IN-HOUSE TEAM OF THE YEAR WINNER

CHINA DEAL OF THE YEAR WINNER ►► CHINA NETCOM/UNICOM/TELECOM RESTRUCTURE

REAL ESTATE & CONSTRUCTION DEAL OF THE YEAR

BANKING & FINANCIAL SERVICES IN-HOUSE TEAM OF THE YEAR

FINALISTS

WINNER

PROJECT FINANCE DEAL OF THE YEAR

in-house awards

Firms: Commerce & Finance; Freshfields; Jingtian & Gongcheng; Linklaters; Milbank; Shearman & Sterling; Skadden; Slaughter and May; Sullivan & Cromwell Banks: CICC; Citi; JPMorgan

Procter & Gamble

FINALISTS BASF Danone Dell Google China Intel Shell The Coca-Cola Company

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CHINESE COMPANY IN-HOUSE TEAM OF THE YEAR WINNER China Telecom

FINALISTS

China Railway Construction Group Chinalco CNOOC Huawei Technologies Lenovo Ping An Insurance Group Sinosteel

MWE CHINA LAW OFFICES AWARD CHINA IN-HOUSE TEAM OF THE YEAR WINNER China Telecom

firm awards Banking law Firm of the Year WINNER

Jun He FINALISTS

Commerce & Finance Haiwen & Partners Jingtian & Gongcheng King & Wood

King & Wood Wang Jing & Co

CCH CHINA AWARD INTELLECTUAL PROPERTY LAW FIRM OF THE YEAR WINNER

Fangda Partners

WINNER

Dacheng FINALISTS

CCPIT Patent & Trademark King & Wood Lifang & Partners Liu, Shen & Associates Longan Law Firm Watson & Band Zhongzi

SHIPPING LAW FIRM OF THE YEAR WINNER

Sloma & Co FINALISTS

Global Law Office Hai Tong & Partners Rolmax Wang Jing & Co

TAX & TRUSTS LAW FIRM OF THE YEAR WINNER

JunZeJun Fortran Hwuason Jun He King & Wood Lehman Lee & Xu

NORTH EAST CHINA LAW FIRM OF THE YEAR WINNER

Deheng Law Firm FINALISTS

Liaoning Fada Liaoning Shenyang Shandong Ya & Tai Wang, Wu, Yang & Ma

ZHEJIANG LAW FIRM OF THE YEAR WINNER

Zhejiang T & C FINALISTS

High Mark Zhejiang Brighteous Zhejiang Liuhe Zhejiang Zeda

JIANGSU LAW FIRM OF THE YEAR WINNER

Fangben FINALISTS

JC Master Jiangsu Co-far Law Firm Jiangsu FD Yongheng Jiangsu Way-to-Justice

AllBright Fangda Partners Jun He King & Wood

RISING LAW FIRM OF THE YEAR

FINALISTS

Winners

GRANT THORNTON AWARD INSOLVENCY & RESTRUCTURING LAW FIRM OF THE YEAR

Han Yi Han Kun HaoLiWen Jia Yuan Jin Mao Partners Run Ming

FINALISTS

WINNER

Guantao

WINNER

MWE China

FINALISTS

Dacheng King & Capital King & Wood W & H Law Firm Zhongzi

INSURANCE LAW FIRM OF THE YEAR WINNER

Grandall Legal Group FINALISTS

AllBright Shanghai Kai-Rong

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Chongqing Overseas Exceedon & Partners Sichuan Jun He Sifangda Tahota Zhong Hao

FINALISTS

FINALISTS

DISPUTE RESOLUTION LAW FIRM OF THE YEAR

FINALISTS

OFFSHORE LAW FIRM OF THE YEAR WINNER

Conyers Dill & Pearman FINALISTS

Appleby Harneys Maples and Calder Walkers

WEST CHINA LAW FIRM OF THE YEAR WINNER

Solton & Partners

TIANJIN LAW FIRM OF THE YEAR WINNER

Join & High Teda Zhang Ying

SHENZHEN LAW FIRM OF THE YEAR WINNER

Shu Jin FINALISTS

China Commercial Law Co Guangdong Guanghe SD & Partners Sincere Partners

HONG KONG LAW FIRM, PRC OFFICE OF THE YEAR WINNER

Deacons Asian Legal Business ISSUE 9.5

feature | ALB Law Awards >>

FINALISTS

Arculli Fong & Ng JSM Jackson Woo & Associates Woo Kwan Lee & Lo Vivien Chan & Co

GUANGZHOU LAW FIRM OF THE YEAR WINNER

Alpha & Leader

Jade & Fountain Jin Mao Partners Llinks

Wang Yadong, Run Ming Wang Zhongde, Dacheng Zhu Linhai, AllBright

LEXISNEXIS AWARD BEIJING LAW FIRM OF THE YEAR

INTERNATIONAL LAW FIRM OF THE YEAR

WINNER

Freshfields

King & Wood

FINALISTS

FINALISTS

Clifford Chance Davis Polk & Wardwell Linklaters Lovells Simpson Thacher & Bartlett Skadden

C & I Partners GFE Law Office Guangda Kingson Wang Jing & Co

Dacheng Guantao Haiwen & Partners Jincheng Tongda & Neal Jun He Tian Yuan Zhong Lun

PORSCHE CENTRE SHANGHAI AWARD SHANGHAI LAW FIRM OF THE YEAR

Gieves & Hawkes Award MANAGING PARTNER OF THE YEAR

WINNER

WINNER

AllBright

Xiao Wei, Jun He

FINALISTS

FINALISTS

Duan & Duan Fangda Partners Grandall Legal Group (Shanghai)

Christopher Han, Llinks Wang Li, DeHeng Law Offices Wang Ling, King & Wood

FINALISTS

WINNER

CHINA LAW FIRM OF THE YEAR WINNER

King & Wood FINALISTS

Dacheng Grandall Legal Group Guantao Jun He Zhong Lun

ALB Japan Law Awards 2009 The full list of finalists who will be battling it out at this year’s ceremony in Tokyo on 28 May

deals of the year DEBT MARKET DEAL OF THE YEAR FINALISTS ►► Yamada Denki Convertible Bond Offering Firms: Anderson Mori & Tomotsune; Linklaters Banks: Nikko Citigroup ►► GE Capital Corporation Samurai Bond Series Firms: Cleary Gottlieb; Linklaters; Nagashima Ohno & Tsunematsu; Nishimura & Asahi Banks: Daiwa Securities SMBC; Mizuho Securities; Morgan Stanley

Firms: Nagashima Ohno & Tsunematsu; Sullivan & Cromwell ►► Royal Bank of Scotland Samurai Bond Series Firms: Dundas & Wilson CS; Linklaters; Mori Hamada & Matsumoto; Nagashima Ohno & Tsunematsu Banks: Daiwa Securities SMBC; RBS Securities Japan ►► Sumitomo Life Insurance Company Medium Term Note Program Firms: Linklaters; Nagashima Ohno & Tsunematsu Banks: Merrill Lynch

EquitY market DEAL OF THE YEAR

►► Sumitomo Mitsui Financial Group Perpetual Preferred Securities Offering Firms: Davis Polk & Wardwell; Linklaters; Maples and Calder; Nagashima Ohno & Tsunematsu; Simpson Thacher & Bartlett Banks: Citigroup; Daiwa Securities SMBC; Goldman Sachs; JPMorgan; Lehman Brothers; Merrill Lynch; UBS Securities Accountants: KPMG

FINALISTS ►► MUFJ Financial Group Global Offering Firms: Anderson Mori & Tomotsune; Paul, Weiss; Mori Hamada & Matsumoto; Nagashima Ohno & Tsunematsu; Simpson Thacher & Bartlett Banks: JPMorgan; Mitsubishi UFJ Securities; Morgan Stanley; Nikko Citigroup; Nomura Securities Accountants: Deloitte Touche Tohmatsu

►► Rabobank Public Samurai Bond Offering Firms: Anderson Mori & Tomotsune; Linklaters; Nishimura & Asahi Banks: Daiwa Securities SMBC; Mizuho Securities; Rabobank Netherland; UBS Securities

►► Chuo Mitsui Trust Holdings Common Stock Global Offering Firms: Davis Polk & Wardwell; Morrison & Foerster; Nagashima Ohno & Tsunematsu; Simpson Thacher & Bartlett Banks: Daiwa Securities SMBC; Goldman Sachs; Nikko Citigroup Accountants: Deloitte Touche Tohmatsu

►► Japan Bank for International Cooperation Schedule B Offering www.legalbusinessonline.com

►► Mitsui Life Insurance Preferred Shares Offering Firms: Nishimura & Asahi Banks: Daiwa Securities SMBC ►► Seven Bank IPO Firms: Anderson Mori & Tomotsune; Nishimura & Asahi; Simpson Thacher & Bartlett; Sullivan & Cromwell Banks: Morgan Stanley; Nomura Securities; Nikko Citigroup ►► Visa IPO Firms: Anderson Mori & Tomotsune; Davis Polk & Wardwell; Skadden; White & Case Banks: Nikko Citigroup

M&A DEAL OF THE YEAR FINALISTS ►► Shinsei Bank - GE Consumer Finance Acquisition Firms: Anderson Mori & Tomotsune; Mallesons Stephen Jacques; Nagashima Ohno & Tsunematsu; Simpson Thacher & Bartlett Banks: JPMorgan Accountants: PwC ►► Takeda - Millennium Acquisition Firms: Edwards Angell Palmer & Dodge; Skadden; WilmerHale Banks: Goldman Sachs; UBS Securities ►► Eisai - MGI Pharmaceuticals Acquisition Firms: Davis Polk & Wardwell; Hogan & Hartson; Sullivan & Cromwell Banks: JPMorgan; Lehman Brothers

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►► MUFJ - Morgan Stanley Stake Acquisition

Firms: Clifford Chance; Cravath; Davis Polk &

Wardwell; Mori Hamada & Matsumoto; Sullivan & Cromwell; Wachtell Banks: Mitsubishi UFJ Securities; Morgan Stanley ►► Tokio Marine Holdings - Philadelphia Consolidated Holdings Acquisition Firms: Sullivan & Cromwell; Wolf Block ►► MUFJ - Union BanCal Corporation Acquisition Firms: Alston & Bird; Mori Hamada & Matsumoto; Skadden; Sullivan & Cromwell ►► Ricoh - IKON Acquisition Firms: Baker Hostetler; Blake Cassels & Graydon; Cravath; Morrison & Foerster; Porter Wright Morris & Arthur; Skadden; White & Case

REAL ESTATE DEAL OF THE YEAR FINALISTS ►► Morley Fund Management Property Acquisition Firms: Allen & Gledhill; Clifford Chance; Linklaters ►► OCM Netherlands Opportunities Cooperatif UA Re-Plus Residential Stake Acquisition Firms: Anderson Mori & Tomotsune; Mitsui & Company; Mori Hamada & Matsumoto; Paul, Weiss Bank: Citigroup; JPMorgan Accountants: PwC ►► DaVinci Advisors-Toranomon Pastoral Acquisition Firms: Morrison & Foerster ►► Mitsui Fudosan-Frontier Real Estate Investment Corporation Acquisition Firms: Mori Hamada & Matsumoto; Nagashima Ohno & Tsunematsu; Banks: Daiwa Securities SMBC; Nikko Citigroup; UBS Securities

INTERNATIONAL DEALMAKER OF THE YEAR FINALISTS

FINALISTS

Alan Cannon, Simpson Thacher & Bartlett Hiroya Yamazaki, Linklaters Kaye Yoshino, Paul, Weiss Stanley Farrar, Sullivan & Cromwell Theodore Paradise, Davis Polk & Wardwell

Daiwa Securities SMBC Mitsubishi UFJ Securities Mizuho Securities Nomura Securities

Japanese DEALMAKER OF THE YEAR FINALISTS

Akiko Kimura, Anderson Mori & Tomotsune Gaku Ishiwata, Mori Hamada & Matsumoto Kazuya Ogawa, Nagashima Ohno & Tsunematsu Tatsuya Tanigawa, Nishimura & Asahi

Japanese DEAL team OF THE YEAR FINALISTS Banking & finance team, Nishimura & Asahi Capital markets team, Anderson Mori & Tomotsune M&A/Corporate team, Mori Hamada & Matsumoto M&A/Corporate team, Nagashima Ohno & Tsunematsu

TOKYO AMERICAN CLUB AWARD INTERNATIONAL DEAL FIRM OF THE YEAR FINALISTS Davis Polk & Wardwell Linklaters Milbank Simpson Thacher & Bartlett Skadden Sullivan & Cromwell

►► J-REP Co Real Estate Fund Establishment

Firms: Anderson Mori & Tomotsune; Freshfields

Bruckhaus Deringer; Nagashima Ohno & Tsunematsu; TMI Associates Banks: Nomura Securities Accountants: KPMG

Technology, media & teleCOmmunications DEAL OF THE YEAR FINALISTS ►► Bain Capital - D&M Holdings Acquisition Firms: Cravath; Clifford Chance; Freshfields Bruckhaus Deringer; Nagashima Ohno & Tsunematsu; Ropes & Gray; TMI Associates Banks: Goldman Sachs; Morgan Stanley; Nikko Citigroup ►► Jupiter Telecommunications - Mediatti Communications Acquisition Firms: Anderson Mori & Tomotsune; Linklaters; Nishimura & Asahi; Ropes & Gray Banks: Goldman Sachs ►► NTT DoCoMo - TM International Acquisition Firms: Milbank; Norton Rose Banks: Nikko Citigroup; Nomura Securities Accountants: Deloitte Touche Tohmatsu; Ernst & Young ►► Bertelsmann Stake Sale

Firms: Davis Polk & Wardwell; Paul, Weiss Banks: Citigroup; JPMorgan

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JAPANESE INVESTMENT BANK TEAM OF THE YEAR

JAPANESE DEAL FIRM OF THE YEAR FINALISTS Anderson Mori & Tomotsune Atsumi & Partners Mori Hamada & Matsumoto Nagashima Ohno & Tsunematsu Nishimura & Asahi

INTERNATIONAL INVESTMENT BANK TEAM OF THE YEAR FINALISTS Deutsche Bank AG Tokyo Goldman Sachs JPMorgan Merrill Lynch Morgan Stanley UBS Securities

TECHNOLOGY, MEDIA & TELECOMMUNICATIONS IN-HOUSE TEAM OF THE YEAR FINALISTS Canon Hitachi IBM Japan NTT DoCoMo Sony Toshiba

TRADING COMPANY IN-HOUSE TEAM OF THE YEAR FINALISTS Itochu Corporation Mitsubishi Mitsui & Comapny Sumitomo

JAPAN IN-HOUSE LAWYER OF THE YEAR FINALISTS

JAPAN DEAL OF THE YEAR FINALISTS To be announced on the evening

in-house awards BANKING & FINANCIAL SERVICES IN-HOUSE TEAM OF THE YEAR

Aaron Eddington, UBS Securities Akiko Yamahara, Nikko Citigroup Chikara Momota, Nikko Citi Holdings Sebastian Gruson, Boehringer Ingleheim Japan Tomohiko Oshikawa, JPMorgan

ZENSHO AWARD JAPAN IN-HOUSE TEAM OF THE YEAR FINALISTS To be announced on the evening

FINALISTS Aozora Bank Japan Bank for International Cooperation Nikko Citigroup Shinsei Bank

Asian Legal Business ISSUE 9.5

feature | ALB Law Awards >>

firm awards DISPUTE RESOLUTION LAW FIRM OF THE YEAR FINALISTS Anderson Mori & Tomotsune Morrison & Foerster Nagashima Ohno & Tsunematsu Nishimura & Asahi

INSOLVENCY LAW FIRM OF THE YEAR FINALISTS Anderson Mori & Tomotsune Bingham McCutchen Miyake Imai & Ikeda Momo-o, Matsuo & Namba Mori Hamada & Matsumoto Nishimura & Asahi

INTELLECTUAL PROPERTY LAW FIRM OF THE YEAR FINALISTS Mori Hamada & Matsumoto Nakamura & Partners Seiwa Patent & Law TMI Associates Yuasa & Hara

OFFSHORE LAW FIRM OF THE YEAR FINALISTS Appleby

Conyers Dill & Pearman Dillon Eustace Maples and Calder Ogier Walkers

OSAKA LAW FIRM OF THE YEAR FINALISTS H Okada Kikkawa Kitahama Group Nakanoshima Chuo Law Office Oh-Ebashi

LIFETIME ACHIEVEMENT AWARD FINALISTS Hiroo Atsumi, Atsumi & Partners Shigeaki Momo-o, Momo-o, Matsuo & Namba Takashi Ejiri, Nishimura & Asahi Toru Ishiguro, Mori Hamada & Matsumoto Tsuyoshi Nagahama, Anderson Mori & Tomotsune

sponsors Zensho As legal profession executive search specialists, Zensho is proud to sponsor this year’s award for Japan’s In-House Team of the Year. At Zensho, we believe executive search within Japan’s legal profession requires local market specialization, long-term commitment, personal attention, discretion, initiative and a sincere intention to help.

Our success depends upon our consistent ability

to quickly make connections, produce results and maintain strong, lasting relationships within the legal and business community. We hope our continued efforts to be a trusted advisor and provider of accurate and timely information will make us the market’s provider of choice.

Contact details: P: 81-03-5575-5091 E: Client-services@zenshogroup.com Candidate-services@zenshogroup.com

Tokyo American Club Founded in 1928, Tokyo American Club is a private members’ club and non-profit organization (shadan hojin). With in excess of 3,500 members from more than 50 countries, the Club’s five restaurants, recreation facilities, spa and host of fitness and cultural programs and classes offer members a community within which to relax, enjoy time with their families, forge lasting relationships and learn about Japan. Through its fundraising activities, the Club’s Women’s Group helps support a number of charities in the Tokyo area.

The Club is currently located at its leafy Takanawa surrounds until its planned return to its new Azabudai facilities in 2011.

Contact Details: Tokyo AmericanClub 4-25-46 Takanawa, Minato-ku Tokyo 108-0074, Japan P: 03-4588-0381 | F: 03-4588-0703 E: tac@tac-club.org

BMW Asia ALB SE Asia Law Awards 2009 The full list of finalists who will be battling it out at this year’s ceremony in Singapore on 5 June

deals of the year ASSET & CORPORATE FINANCE DEAL OF THE YEAR FINALISTS ►► GMR - Intergen financing and acquisition Firms: Allen & Overy; Allen & Overy Shook Lin & Bok; Appleby; Cains; DeBreau Westbrook; Luthra & Luthra; Mallesons Stephen Jaques; Sidley Austin; SyCip Salazar; White & Case

►► PT Profesional Telekomunikasi Indonesia senior and mezzanine financing Firms: Allen & Overy; Hadinoto, Hadiputranto & Partners; Latham & Watkins; Makes & Partners; Milbank; Stamford Law Banks: ABN Amro; Chinatrust Commercial Bank; CIMB; DBS; OCBC; PT Bank Central Asia Tbk; PT Bank Mandiri (Persero) Tbk; Standard Chartered

INSOLVENCY & RESTRUCTURING DEAL OF THE YEAR

►► Merrill Lynch & Symphony - DLF Group investment Firms: AZB & Partners; J Sagar & Associates; Linklaters; Luthra & Luthra

FINALISTS ►► FR8 Holdings insolvency Firms: Allen & Gledhill; Clifford Chance; Drew & Napier; Gorrisen Federspeil Kierkegaard; Rodyk & Davidson; Shook Lin & Bok; Watson Farley & Williams; White & Case; WongPartnership Banks: ING Belgium NV Accountants: Grant Thornton

►► MISC Capital loan facility Firms: Norton Rose; Raslan Loong; Watson, Farley & Williams

►► IJM Land Corporation Restructuring Firms: Zaid Ibrahim & Co; Zain & Co Banks: AmInvestment Bank Berhad

www.legalbusinessonline.com

►► Nomura - Lehman Brothers (Asia) acquisition Firms: Allen & Gledhill; Allen & Overy; AZB & Partners; Freshfields Bruckhaus Deringer; Khaitan & Co; Linklaters; Mallesons Stephen Jaques; Rajah & Tann; Skadden; Weil Gotshal & Manges; White & Case; WongPartnership Banks: Rothschild Accountant: KPMG ►► UEM World Restructuring Firms: Kadir Andri & Partners Banks: CIMB; Public Investment Bank Berhad Accountant: Ernst & Young

Assetton Award PROJECT FINANCE DEAL OF THE YEAR FINALISTS ►► Adani Power project finance Firms: Clifford Chance; Luthra & Luthra Banks: Axis Bank; Bank of India; Corporation Bank; IOB; Punjab National Bank; SBI; Standard Chartered; State Bank of

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Mysore; State Bank of Patiala; State Bank of Saurashtra; State Bank of Tranvancore; Tamilnadu Mercantile Bank

Banks: PT Danatam Makmur Accountants: PwC

►► ITE West College PPP

Dexia; Dresdner Bank; KBC Bank; Mizuho Bank; Natixis; Royal Bank of Scotland; OCBC Accountants: PwC

►► PT Bakrie & Brothers rights issue & acquisition Firms: Allen & Overy; Hadiputranto Hadinoto & Partners; Soebagjo Jatim Djarot Banks: Credit Suisse

►► The Cairns - Straits Trading acquisition Firms: Allen & Gledhill; WongPartnership

Firms: Allen & Overy Shook Lin & Bok; Ashurst;

Linklaters Allen & Gledhill; WongPartnership Banks: Dexia; DZ Bank; HSBC; Sumitomo-Mitsui; Bank of Tokyo MUFJ ►► Mundra Power project finance Firms: Chadbourne & Parke; J Sagar & Associates; TSMP; Watson Farley & Williams Banks: Asian Development Bank; BNP Paribas; KEXIM; State Bank of India ►► Resorts World Sentosa project finance

Firms: Cains; Conyers, Dill and Pearman; Drew &

Napier; Lovells Lee & Lee Banks: Bangkok Bank; Bank of Tokyo MUFJ; BNP Paribas; Calyon; CIMB; Commerzbank AG; DBS; DZ Bank; HSBC; JPMorgan; Malayan Banking Berhad; NAB; OCBC; RBS; Sumitomo-Mitsui ►► Tanjung Jati B Power Plant expansion

Firms: Ali Budiardjo, Nugroho, Reksodiputro; Cleary

Gottlieb; Denton Wilde Sapte; Makarim & Taira S; Milbank; Nagashima Ohno & Tsunematsu; Paul, Weiss; WongPartnership Banks: Bank of Tokyo MUFJ; BNP Paribas; Sumitomo-Mitsui Accountants: PwC

DEBT MARKET DEAL OF THE YEAR FINALISTS ►► CapitaLand CB offering Firms: Allen & Gledhill; Allen & Overy Shook Lin & Bok; Linklaters Allen & Gledhill; WongPartnership Banks: JPMorgan ►► CIMB stapled securities program Firms: Adnan Sundra & Low; Zaid Ibrahim & Co Banks: CIMB Accountant: PwC ►► City Development Islamic trust certificate program Firms: Allen & Gledhill; WongPartnership Banks: Bank of New York Mellon; CIMB ►► Standard Chartered Medium-Term Note program Firms: Kim & Chang; Slaughter and May; Zul Rafique & partners Banks: KEXIM; Standard Chartered ►► Vedanta Securities CB offering Firms: Amarchand & Mangaldas; Latham & Watkins; Shearman & Sterling Banks: Barclays Capital; Citi; Deutsche Bank; JPMorgan; Morgan Stanley

Equity Market DEAL OF THE YEAR

►► Telekom Malaysia demerger - TM International listing Firms: Adnan Kelana Haryanto Hermanto; Atieh Associates; Crawford Bayley & Co; DFDL Mekong/ Mekong Law Group; Dr Kamal Hossain; Associates Herbert Smith; Nithya & Partners; Orr, Dignam & Co; TM&S Gujadhur Chambers; WongPartnership; Zul Rafique & partners Banks: CIMB; UBS Accountants: PwC

Southeast ASIA M&A DEAL OF THE YEAR FINALISTS ►► Maybank - Bank Internasional Indonesia stake acquisition Firms: Assegaf Hamzah & Partners; Drew & Napier; Latham & Watkins; Hadiputranto Hadinoto & Partners; Melli Darsa & Co; Rodyk & Davidson; WongPartnership Banks: Malayan Banking Berhad ►► Maybank - Kookmin Bank share acquisition Firms: Drew & Napier; Rodyk & Davidson; Shin & Kim; Wong Partnership Banks: Kookmin Bank; Maybank ►► NTT DoCoMo - Tata Teleservices investment Firms: AZB & Partners; J Sagar & Associates; Khaitan & Co; Shearman & Sterling; Skadden ►► PT Bank Lippo - PT Bank Niaga Tbk merger Firms:Albar & Partners; Hadiputranto Hadinoto & Partners; Melli Darsa & Co; Rajah & Tann; RSM AAJ Associates Banks: CIMB Accountants: PT Ernst & Young Advisory Services ►► Tata Motors - Jaguar/Land Rover acquisition Firms: Allen & Overy; Hogan & Hartson; Rodyk & Davidson Accountants: Deloitte

IPP Financial Advisers Award SINGAPORE M&A DEAL OF THE YEAR FINALISTS ►► Ascott Group privitisation Firms: Rajah & Tann; WongPartnership

FINALISTS ►► Transcu-Eng Wah Holdings RTO Firms: Drew & Napier; Duane Morris; Heller Ehrman; Miyake & Yamakazi; Stamford Law Corporation; TMI Associates Banks: CIMB; KBC Bank Accountants: Deloitte; Ernst & Young; KPMG

►► China Huaneng - Tuas Power acquisition Firms: Allen & Gledhill; Drew & Napier; Haiwen & Partners; Herbert Smith; Lovells; Shook Lin & Bok; Sullivan & Cromwell Banks: BNP Paribas; Calyon; Credit Suisse; DBS; Fortis; Morgan Stanley; OCBC

►► Esso Thailand IPO Firms: Baker & McKenzie; Davis Polk & Wardwell Banks: Morgan Stanley; Phatra Securities

Firms: Allen & Gledhill; Herbert Smith; Rajah & Tann

►► PT Adaro Energy TBK IPO Firms: Hadiputranto Hadinoto & Partners; Hendra Soenardi & Rekan; Latham & Watkins; Lubis Ganie Surowidjojo; Milbank; White & Case

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►► Reliance Power IPO Firms: Amarchand & Mangaldas; Cleary Gottlieb; J Sagar & Associates

►► Gaz de France - Power Gas JV

►► Lion Power Holdings - Senoko Power financing & acquisition Firms: Allen & Gledhill; Allen & Overy; Latham & Watkins; Rajah & Tann; Rodyk & Davidson; WongPartnership Banks: ANZ Investment Bank; Bank of Tokyo MUFJ; DBS;

BMW Asia Award S0utheast asia DEAL OF THE YEAR FINALISTS Full list to be revealed on the evening

singapore DEAL OF THE YEAR FINALISTS Full list to be revealed on the evening

in-house awards Banking & Financial Services In-House Team of the Year FINALISTS Citi DBS HSBC ICICI Bank Maybank OCBC Standard Chartered

Braun Büffel Award Investment Bank In-House Team of the Year FINALISTS Credit Suisse Deutsche Bank Goldman Sachs JPMorgan Merrill Lynch Morgan Stanley UBS

IT/Telecommunications In-House Team of the Year FINALISTS AT&T Bharti Televentures Nokia SingTel StarHub Telekom Malaysia Berhad

De Dietrich Award Real Estate & Construction In-House Team of the Year FINALISTS CapitaLand DLF Far East Organisation Fraser Centrepoint Unitech

Asian Legal Business ISSUE 9.5

feature | ALB Law Awards >>

Shipping In-House Team of the Year FINALISTS Malaysian International Shipping Berhad Neptune Orient Lines Pacific Carriers Shipping Corporation of India Titan Orient Lines

Gibson, Dunn & Crutcher LLP Award Singapore In-House Team of the Year FINALISTS Full list to be revealed on the evening

Singapore In-House Lawyer of the Year FINALISTS Boon Chin Aun, Golden Agri Resources Damian Yeo, Nokia Jeffrey Wong, UBS Lena Chia, Temasek Holdings Sharon Goh, Pacific Carriers

firm awards COMMERCIAL LITIGATION LAW FIRM OF THE YEAR FINALISTS Allen & Gledhill Drew & Napier Rajah & Tann WongPartnership

Merrill Legal Solutions Award CONSTRUCTION LAW FIRM OF THE YEAR FINALISTS Allen & Gledhill Drew & Napier Harry Elias Partnership Rajah & Tann WongPartnership

ENERGY & RESOURCES LAW FIRM OF THE YEAR FINALISTS Clifford Chance Latham & Watkins Linklaters Allen & Gledhill Lovells Lee & Lee Milbank Norton Rose

IP LAW FIRM OF THE YEAR FINALISTS AMICA Law ATMD Bird & Bird Baker & McKenzie.Wong & Leow Drew & Napier Lee & Lee Rodyk & Davidson

www.legalbusinessonline.com

Merrill Legal Solutions Award INTERNATIONAL ARBITRATION LAW FIRM OF THE YEAR FINALISTS Allen & Gledhill DLA Piper Drew & Napier Herbert Smith Norton Rose Rajah & Tann Shearman & Sterling

OFFSHORE LAW FIRM OF THE YEAR FINALISTS Appleby Cains Conyers Dill & Pearman Maples and Calder Walkers

REAL ESTATE LAW FIRM OF THE YEAR FINALISTS Allen & Gledhill Drew & Napier KhattarWong Lee & Lee Rodyk & Davidson WongPartnership

Southeast ASIA SHIPPING LAW FIRM OF THE YEAR FINALISTS Clyde & Co Ince & Co Holman Fenwick Willan Stephenson Harwood Watson, Farley & Williams

SINGAPORE SHIPPING LAW FIRM OF THE YEAR FINALISTS Allen & Gledhill Drew & Napier Haridass Ho & Partners JTJB Rajah & Tann

TAX & TRUSTS LAW FIRM OF THE YEAR FINALISTS Allen & Gledhill Baker & McKenzie.Wong & Leow Drew & Napier KhattarWong WongPartnership

INDIA DEAL FIRM OF THE YEAR FINALISTS Amarchand & Mangaldas AZB & Partners FoxMandal Little J Sagar & Associates Khaitan & Co Luthra & Luthra Talwar Thakore & Associates

INDONESIA DEAL FIRM OF THE YEAR FINALISTS Ali Budiardjo Nugroho Reksodiputro Hadiputranto Hadinoto & Partners Hendra Soenardi & Rekan Lubis Ganie Surowidjojo Makarim & Taira S Makes & Partners Melli Darsa & Co

MALAYSIA DEAL FIRM OF THE YEAR FINALISTS Albar & Partners Azmi & Associates Kadir Andri & Partners Shearn Delamore Zaid Ibrahim & Partners Zul Rafique & partners

PHILIPPINES DEAL FIRM OF THE YEAR FINALISTS Accra Law Quisumbing Torres Romulo Mabanta Buenaventura Sayoc & De Los Angeles SyCip Salazar Hernandez & Gatmaitan

THAILAND DEAL FIRM OF THE YEAR FINALISTS Baker & McKenzie Chandler & Thong-Ek Clifford Chance Hunton & Williams Siam Premier

VIETNAM DEAL FIRM OF THE YEAR FINALISTS Allens Arthur Robinson Baker & McKenzie Frasers Freshfields Bruckhaus Deringer VILAF Hong-Duc YKVN

INTERNATIONAL DEAL FIRM OF THE YEAR FINALISTS Baker & McKenzie Clifford Chance Latham & Watkins Linklaters Milbank White & Case

SINGAPORE DEAL FIRM OF THE YEAR FINALISTS Allen & Gledhill Drew & Napier Rajah & Tann WongPartnership

THE ALB LAW AWARDS 2009 To find out more about all of the finalists go to our website at www.albawards.com

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FEATURE | Employment law >>

Asia’s changing employment landscape Minter Ellisons’ Pattie Walsh, Alison Smith and Winnie Wong, from the firm’s Greater China Employment Practice, outline Hong Kong’s employment laws in a market where the potential for disputes is huge

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T

he current economic situation has created many issues around employment law for several companies across Asia. Dealing with these issues to avoid any additional liability and keeping existing employees motivated will prove challenging.

Cutting costs

Top of the list for many companies is fiscal responsibility and managing costs in the downturn. Many employers will be reducing headcount and cutting costs, and are now seeking advice about how to manage their poor performers in order to cut costs.

In the absence of internal policies and procedures which deal with disciplinary procedures and terminations, in Hong Kong there is no statutory procedure an employer is required to follow before terminating an employee for poor

performance, and no requirement for an employee termination warning. As long as the employer has a fair reason for termination, and the employer pays the employee all of his or her entitlements under the contract as per Hong Kong legislation, then the risk of an employee successfully challenging the termination should be relatively small.

There is limited protection for employees from wrongful termination, unreasonable termination or unlawful termination – for example, when an employee is pregnant, on statutory maternity leave, or is taking accrued annual leave. It is also important to remember that it is prohibited under the discrimination ordinances to subject an employee to detrimental treatment, including termination, on the grounds of sex, pregnancy, marital status, family status and disability.

Asian Legal Business ISSUE 9.5

FEATURE | Employment law >>

Importantly, it is anticipated that the new Race Discrimination Ordinance will come into effect soon and will prohibit discrimination on the grounds of race.

Mergers, acquisitions and restructuring

In this challenging market, many businesses will be considering restructuring, takeovers or mergers.

These could lead a company to introduce changes that may have implications for employees.

There is no law in Hong Kong that will allow the employment relationship to be transferred from one entity to another where there has been a transfer or change of business ownership. This means that employment relationships with the old employer will need to be lawfully terminated and the employee will need to enter into a new relationship with the new employer. Often this is achieved in practice by sending a letter to the affected employees informing them of the transfer of their employment to the new employer, including any changes to their terms and conditions, and asking them to consent to such a transfer. In this situation, the employees’ continuous employment will be preserved. If the employee does not consent to the transfer, then this will almost certainly constitute a redundancy termination with resulting termination payments.

Redundancies

In terms of procedure in the event of redundancies, there is no requirement to consult with employees either collectively or individually under Hong Kong law. Therefore, many employers are calling employees into a meeting, making a payment in lieu of any notice period and asking them to leave the premises that same day.

In terms of selecting employees to be made redundant, once a pool of employees has been identified as those who may be selected for redundancy, it is best practice to establish a fair selection criterion against which the employees will be assessed. Clearly any selection criteria applied should not be discriminatory.

There is no obligation on employers to consider or make an offer of suitable alternative employment to the redundant employees. However, any offer made may have a bearing on the employer's obligation to pay a severance payment as set out below. www.legalbusinessonline.com

►► termination costs

While there may be additional obligations under the employee’s employment contract, under the Employment Ordinance the following payments may be payable to an employee upon termination of employment: • payment in lieu of notice • accrued wages for work performed (i.e. the employee’s wages up to the date of termination) • accrued annual leave • outstanding holiday pay • accrued end-of-year payments • severance payment (dealt with above) • long service payment (where the employee has more than five years’ service and is not entitled to a severance payment) • contractual payments provided by the contract.

In relation to payment for the relevant statutory entitlements, including a payment in lieu of notice, many employers are failing to comply with the revised calculation under the Employment (Amendment) Ordinance.

This states that the payment for the relevant statutory entitlement must be calculated using the employee’s average daily or monthly wages (i.e. not just basic salary) over the previous 12 months (or a shorter period where the employee has been employed for less than 12 months).

An employee will be entitled to a statutory severance payment where he or she has more than two years’ service and has been dismissed by reason of redundancy. Broadly speaking, an employee will be entitled to a base amount for every year of service – that base amount is two-thirds of the employee’s last full month’s wages or two-thirds of HK$22,500 (i.e.

HK$15,000), whichever is less.

An employee will not be entitled to a severance payment if the employer has made an offer to renew the employment or re-engage the employee on terms that are no less favourable to the employee and the employee has unreasonably refused that offer. If an employer wishes to take advantage of these provisions, the new employer must make the offer no later than seven days before the employment is scheduled to terminate (or where the employer is making a payment in lieu of notice of termination no later than seven days before the date up to which the payment in lieu is calculated). The renewal or re-engagement must take effect on or before the termination date.

However, employers should be aware that the employee may still have a right to a long-service payment if he or she has five years’ continuous service. ALB 71

FEATURE | travel survey >>

Business travel survey: ALB Editor’s Choice 2009 Travel could provide a saving grace for law firms this year, and with the travel industry increasing their incentives, ALB’s annual survey provides a guide to the best airlines, hotels and restaurants

I

t is no surprise that in the past year business travel trends have changed significantly. Fiscally conscious clients and managers are trimming budgets, and are demanding more from their travel companies, whether it is a higher level of service or the incentives currently being offered. However, firms are also realising that travel may just be the ticket to help generate business in a downturn.

Lawyers are essentially service providers and part of meeting client needs includes taking the long haul to meet them face to face. Research from US Travel Association (USTA) has shown that companies are recognising that travelling to service clients on the ground where their competitors may not be, can better position them in an increasingly competitive market.

“In this global economy, firms should be fighting for business, not holding back, and should be out there networking,” says Chris Flynn, pacific regional director of non-profit travel association, Pacific Asia Travel

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Association. “It’s not a time to cease travelling, the world economy is based on trade and that includes travel.”

Although it may appear beneficial in the short term, business may be lost to other firms who are out there servicing clients on the ground and developing their contacts, methods recognised as the gateway to bring more work into the firm. “Travel plays an important role in business growth in a down economy, by helping businesses connect with their customers,” says Suzanne Cook, vice president of research at USTA. “It’s also clear from our [research] that the old maxim remains true; if you don’t take care of your customers, someone else will.”

Traveller’s check

Lower rates, higher service levels, more incentives. Travel companies are rolling out the perks. In the next few months travellers will see loyalty rewarded in frequent flyer points, or two for one deals. “It’s likely that the travel industries will Asian Legal Business ISSUE 9.5

FEATURE | travel survey >>

BEST RESTAU

RANT BEST AIRLIN

BEST HOTEL

E

/RESORT

be value-adding, with free upgrades or through loyalty programs,” Flynn says. While airline, lodging and booking prices have never been more attractive, the choice remains large.

Best Business Class Airline for North Asia British Airways Emirates

Business class airlines

Korean Air Cathay Pacific

BEST RESTAU

RANT

Virgin Atlantic

BEST AIRLIN

BEST HOTEL

Best Business Class Airline for Southeast Asia/Middle East Etihad Airways Malaysian Airlines Singapore Airlines Qatar Airways Emirates

www.legalbusinessonline.com

/RESORT

E

Developing a number of loyal passengers requires a checklist in certain areas. Value, modern amenities and service were the basics, but reputation and consistency of service also weighed in. Devotees of Singapore and Malaysian airlines said they offered good rates and convenience in purchasing tickets, while British Airways garnered favour for its industry reputation and its business class program ‘Club World’. This year’s new favourites, Emirates and Etihad, were rated for their modern seating and cabins. The service at Korean Air came highly recommended from readers, some of who placed the friendliness of cabin staff as a major reason for their choice.

Other airlines commended for their 73

FEATURE | travel survey >>

Business travel survey: Editor’s Choice 2008 service were Cathay Pacific and Qatar Airways, who came in top once again, with both rating highly for in-flight entertainment. And for flyers of long haul flights, the airlines’ flat beds were much appreciated. Meanwhile, value for money proved a winner for enthusiasts of Virgin Atlantic and Malaysian Airlines.

Best business hotels

Views, facilities, and comfort were all high on the list for readers. Survey respondents also said that location and service efficiency lure them back to hotels such as the Conrad in Hong Kong, which proved a favourite.

Some hotels were voted not just for one location, but two – the Grand Hyatt’s Seoul and Beijing branches and the Shangri-La in Singapore and Hong Kong are certainly keeping readers happy. Service staff was highly valued in Seoul, as was room space and amenities in Beijing, especially after a long haul flight and the bustle outdoors. “One of best views,” was how one respondent rated Island Shangri-la in Hong Kong, with another praising the hotel’s combination of room spaciousness and high level of service. Tokyo’s Park Hyatt hotel was rated highly for location and views, but the “excellent coffee”, sealed the deal for one respondent. Nikko Hotel in Kuala Lumpur was acknowledged for the quality of the food at its Benkay Japanese Restaurant and Serena Brasserie.

BEST RESTAU

RANT

BEST HOTEL

BEST AIRLIN

E

BEST AIRLIN

E

BEST AIRLIN

E

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/RESORT

Best Business Hotel in North Asia Conrad Hong Kong Grand Hyatt, Beijing Grand Hyatt, Seoul Island Shangri-la, Hong Kong

BEST RESTAU

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Park Hyatt, Tokyo BEST HOTEL

/RESORT

Best Business Hotel in Southeast Asia/Middle East Ritz Carlton, Jakarta Conrad, Singapore Shangri-La, Singapore BEST RESTAU

Nikko Hotel, Kuala Lumpur

RANT

Burj Al Arab, Dubai BEST HOTEL

/RESORT

Best Serviced Apartments in North Asia Fraser Place, Tokyo Opposite House, Beijing Four Seasons Place, Hong Kong Ascott Beijing

BEST RESTAU

RANT

Regalia Serviced Residence, Shanghai

Best serviced apartments

Asia’s serviced apartments are becoming increasingly popular for business travellers in the current environment, with enquiry rates growing by 24% last year, according to research by Hogg Robinson Group. Apartments have become an ideal choice for lawyers extended stays or generally for those staying for long periods.

Apartment atmosphere, location and facilities proved the biggest selling point for most respondents, with a

74

BEST HOTEL

/RESORT

Best Serviced Apartments in Southeast Asia/Middle East Ascott, Jakarta Fraser Suites, Hanoi Orchard Parksuites, Singapore Great World Serviced Apartments, Singapore

Asian Legal Business ISSUE 9.5

FEATURE | Travel survey: Editor’s choice 2008 >>

www.legalbusinessonline.com

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FEATURE | travel survey >>

Business travel survey: Editor’s Choice 2008 significant number of apartments from the PRC in the north Asia top five – Ascott, Four Seasons Hong Kong, Opposite House and Regalia Serviced Residence were all highly recommended. Singapore’s Orchard Parksuite and Great World Service Apartments also received commendations for amenities including wifi. Fraser Place in Tokyo and Vietnam was voted for its modern design and service.

Best restaurants

Unsurprisingly, there were a significant number of votes in this category, as Asia’s restaurants not only provide the most variety, but high service quality and, of course, great food. These were the main reasons provided by respondents for voting restaurants such as Hong Kong’s Huton, Vabene, and Spoon by Alan Ducasse, while Singapore’s Indochine and Taste Paradise were also praised, along with Malaysia’s Nero Vivo, Kampachi Restaurant and Latest Recipe Restaurant for their “delicious meals and good service”. M on the Bund in Shanghai not only provided good views, but ambience was also a significant selling point. ALB

76

BEST RESTAU

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BEST HOTEL

BEST AIRLIN

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Best Restaurants in North Asia Hutong, Hong Kong M On the Bund, Shanghai Vabene, Hong Kong Spoon by Alan Ducasse, Inter Continental Hong Kong

BEST RESTAU

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Otowa – Tei, Hilton Tokyo BEST HOTEL

/RESORT

Best Restaurants in Southeast Asia/Middle East Indochine, Singapore Taste Paradise, Singapore Latest Recipe, Le Meridien Hotel, Kuala Lumpur Nero Vivo, Kuala Lumpur Kampachi Restaurant, Equatorial Hotel, Kuala Lumpur

Asian Legal Business ISSUE 9.5

FEATURE | Travel survey: Editor’s choice 2008 >>

www.legalbusinessonline.com

77

feature | technology >>

Rise of the cyber court Courtrooms across Asia have become increasingly IT savvy. From video sharing to real-time transcription services, technological developments in litigation are well under way – and lawyers are benefiting as well

C

ourts across Asia have been pushing technological development for a number of years, which has now led to more efficient methods in processing litigation cases, saving time and money for all parties involved.

In the case of the Supreme Court of Singapore, its aim to be completely paperless from 2000 has marked some notable changes. In the movement towards an ‘electronic litigation system’, the court has rolled out several technologies such as a digital transcription, electronic queue management and signage systems, as it tries to improve efficiency for all parties.

For example, prior to the adoption of the queuing technology, lawyers had to wait in court until their hearing number came up – with no indication of hearing order or scheduled time.

The advantages of these technologies have been significant – namely where lawyers and parties today are situated across different regions, the ‘electronic court’ gives them the opportunity to make an appearance, a possibility that was not possible previously. Singapore has also established a committee which reviews and discusses new technologies that can be used by the judiciary and litigators. Currently, the group is working on a new, integrated electronic litigation system which it is said will further improve court technologies.

For law firms and in-house teams grappling with numerous case files, transcripts and client documents, the number of support services and technologies available to assist on eDiscovery has also boomed. In the current economic environment, where bankruptcy and litigation cases are on the rise, services from transcription to document archiving will become increasingly necessary.

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Litigation support groups

Litigation support groups have become essential for large firms or for in-house teams dealing with complex cases, as the group can take a number of tasks and demands off the legal teams.

The roles and requirements of the group may vary considerably, from one-off tasks to support throughout

the litigation life cycle. While the legal team prepares for the trial, the group can assist by coordinating video depositions and presentations, labelling exhibits, or training legal teams in using technologies.

Embedded within firms in the litigation practice area – as in the case of Mallesons and Blake Dawson Asian Legal Business ISSUE 9.5

feature | technology >>

– the group can act as both internal and external providers of litigation support. Drew & Napier’s Knowledge Management department benefits its litigation lawyers by providing updated information from databases as well as managing the firm’s online legal resources.

Brave new systems

Transcription services

For law firms… grappling with numerous case files, transcripts and client documents, the number of support services and technologies available to assist on eDiscovery has also boomed

While some courts have transcription services available, firms may also find it useful to shop around for their own outside of the courtroom. Legal transcription services abound and some offer the full range of services, from digital transcription and court reporting to document scanning and videography of depositions.

Some companies, such as Scriptero, offer multi-lingual services to meet a broad range of Asian dialects.

Other services allow for text to be transferred into voice files, as with WinScribe, through a speech recognition technology.

www.legalbusinessonline.com

A software program that does all the decision making for you? While this might sound like something out of science fiction, the reality is that unique software products are disseminating in legal circles. These programs can assist

in cutting time in litigation-related decision making processes, a feature of software such as JustSys, through a computerised mindmap representing the user’s own decisions.

Other unique innovations in the litigation technology industry include ‘cloud computing’, a method of outsourcing the service of external data

storage, which lowers costs for the firm.

Through this, the firm can access data hosted by external providers.

However, there should be some considerations to this service, such as where the data will be stored, whether there are certain user access securities,

or if lost data can be recovered. In case of the latter, certain software programs can perform automated, undetected searches on desktops, servers or CMS. Guidance Software’s EnCase eDiscovery is a well known program in legal circles which can also aid against data breaches – removing sensitive data by search request. ALB

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PRIVATE PRACTICE

IN-HOUSE

FUNDS LAWYER – HONG KONG

HEAD OF LEGAL - FORTUNE 500 – SHANGHAI

Leading law firm requires funds lawyer to join its busy practice. Our

Healthcare giant seeks a senior lawyer to head up its legal functions

client has an impressive blue chip client base and will offer you high

for the Greater China region. Reporting to the Head of Legal for

quality work with a focus on funds related matters.

Excellent

Asia Pacific, you will be responsible for the operational and

mentoring and strong career prospects await the successful

transactional growth of the company’s establishment in the PRC.

candidate. Rare opportunity to work with some of HK’s leading

Strong transactional experience and people management skills are

partners at a very stable and well established firm. Chinese language

essential. Illustrious prospect with a global and stable powerhouse

skills are not required. (PT2134)

at hand. (IS1127)

2-5 YRS PQE

8 YRS+ PQE

COMMERCIAL LITIGATOR – HONG KONG

LEGAL COUNSEL – BEIJING

International law firm requires commercial litigator to join its

Our client is a highly respected international brand name in the

thriving practice. The successful candidate will work with an

biochemical industry and they now require a mid-level lawyer to join

impressive blue chip client base, on cross-border and HK based

their team. Working with a senior legal counsel, you will work on a

commercial disputes. You will be qualified in a Commonwealth

range of matters including IP enforcement, general corporate

jurisdiction and are likely to be working for an international firm.

commercial and risk management. You should have relevant

On offer is an excellent mentoring program and a competitive

experience, preferably gained in-house in the PRC. Fluency in

package. (PT2135)

Mandarin is required. Competitive salary. (IS1134)

3-5 YRS+ PQE

3-6 YRS PQE

COMMERCIAL REAL ESTATE – HONG KONG

PRODUCTS LAWYER – HONG KONG

Are you a commercial real estate lawyer seeking to join a highly

Our client is a financial institution that has a high profile in the Asia

regarded international law firm? Broad range of challenging work on

region. They are now looking for a high-calibre lawyer to join their

offer and opportunity for rapid career development. You will be given

team. You will be actively involved in advising on the development of

the opportunity to work closely with a highly regarded partner and to

new financial products for the retail side. A solid background in

focus on some high profile real estate projects. Chinese language

regulatory issues and requirements in Hong Kong will be invaluable.

skills are required for this role. Rare opportunity to join a growing

This position offers attractive opportunities for long-term career

practice. (PT2139)

advancement. (ISJE1138)

4-6 YRS PQE

5 YRS+ PQE

HK CORPORATE – BEIJING

TRANSACTIONS - WEALTH MANAGEMENT – HONG KONG

Our client is expanding its operations across Hong Kong and China

Having established a strong footprint across Asia, our client is a

and they now have an opening in their Beijing office for an

powerhouse in the wealth management business. It seeks a

experienced corporate lawyer. You should have a solid background

transactions lawyer to join its team of seasoned lawyers on a 12

in M&A transactions and be familiar with the Hong Kong Listing

months contract. You will work on legal matters relating to a wide

Rules. Fluency in Cantonese or Mandarin would be highly

breadth of ongoing transactions across the region. Transactional and

advantageous. Good working environment and opportunity for long

regional exposure is essential. Rare prospect with a dynamic

term career development. (PT2147)

conglomerate at hand. (IS1133)

3 YRS+ PQE

HONG KONG OFFICE Please contact James Garzon at (852) 2521 0306 or email hk@law-alliance.com

SINGAPORE OFFICE Please contact Jeremy Small at (65) 6829 7155 or email sing@law-alliance.com

5 YRS+ PQE

www.law-alliance.com Visit our website to see the latest in-house and private practice vacancies worldwide.

GENERAL COUNSEL Hong Kong 10+ PQE Our client is a leading HK listed manufacturing company looking to secure a general manager for group legal affairs. This role oversees all legal matters in Greater China and is based in Hong Kong. (ALB 4027) SENIOR TRUST Hong Kong 7+ PQE Our client is a private trust looking for a tax and trusts lawyer. Candidates with experience in company secretarial duties will also be considered. This is a senior position in a friendly work environment. (ALB 4059) ASIA-PAC GENERAL COUNSEL Shanghai 6+ PQE Well known MNC with its Asia regional headquarters based in Shanghai is looking for a senior corporate / commercial lawyer to head its legal team for one of its business lines.

Challenging opportunity for the right individual. (ALB 4060) LEGAL AND COMPLIANCE MANAGER Hong Kong 5-10 PQE Well established financial service provider seeks qualified lawyer to join their dynamic team. Strong understanding of MPF and pension schemes products with good exposure to rules and regulations governing these is important. Knowledge of life insurance and other financial products will be a plus. (ALB 3956) LEGAL COUNSEL Singapore 4+ PQE Global leader seeks a Corporate Lawyer with at least 4+ PQE gained from another in-house team, and prior experience in South East Asia markets. You will be confident in advising, drafting and negotiating contractual matters and your practical, business focused approach will allow you to get involved from day one. (ALB 4080)

CORPORATE Hong Kong Senior Associate / Partner Expanding US firm with offices in Hong Kong and the PRC seeks an additional Hong Kong qualified partner for its corporate practice. Immediate partnership is available for senior associates with some following. (ALB 4051) PRC Shanghai Senior Associate / Partner The Shanghai office of this international firm is well established and continuing to generate quality commercial work. It now seeks an additional partner for the office to take a lead role in continuing the development of its commercial practice. (ALB 3275) US SECURITIES Beijing 5-10 PQE The Beijing office of this leading international law firm seeks a senior US securities lawyer to assist in the management of its outbound US capital markets work. Chinese language skills would be an advantage. (ALB 4076) CORPORATE Hong Kong 1-5 PQE Top tier international firm has an urgent need to hire a corporate / M&A lawyer with first rate academics and previous experience from another international firm. There is no shortage of deals in the pipeline. Fluency in Chinese is essential. (ALB 4054)

These are a small selection of our current vacancies.

If you require further details or wish to have a confidential discussion about your career, market trends, or salary information then please contact one of our consultants: Denvy Lo, Nick Marett, Nisha Chugh, Lucy Li, or Andrew Skinner.

JUNIOR LITIGATOR Hong Kong 1-3 PQE Leading international firm seeks a junior HK qualified litigator with experience in commercial, banking and finance, and regulatory work. Business Mandarin and Cantonese and international law firm experience would be highly advantageous. (ALB 4066)

Hong Kong

Singapore

Beijing

3305, 33/F, The Centrium, 60 Wyndham Street, Central, Hong Kong Phone: (852) 2973 0810 Evening/Weekends: (852) 9383 1819 Email: als@alsrecruit.com

20 Cecil Street, #20-03 Equity Plaza, 049705 Singapore Phone: (65) 6557 4163 Email: singapore@alsrecruit.com

Suite 85, L24, Tower 3, China Central Place, 77 Jianguo Road, Chaoyang District, Beijing 100025, China Phone: (86) 10 8588 0040 Email: als@alsrecruit.com

ALB China is the leading magazine dedicated to the legal industry in China. Each issue is packed with news, analysis and features that are essential reading for anyone interested in the PRC’s rapidly developing legal scene. A team of dedicated journalists provide in-depth examinations of all the China issues facing lawyers and in-house counsel throughout the region.

SuBSCriBE now And in Your FirSt CopY: GEB (Growth Enterprise Board)

China’s long-awaited answer to NASDAQ, the GEB is expected to launch later this year. Find out just what opportunities this important expansion of China’s Capital Markets offers when seasoned securities lawyers and investment bankers share their insights with ALB China.

China’s outbound M&A

As China’s companies continue to take advantage of the bargains available on the global market, ALB China analyses the recent Chinese buying spree in Australia. Find out how Chinese and Australian firms are collaborating on such transactions and what lessons they have learned.

Bond Markets Heat up

The first quarter of 2009 has seen a sharp rise in the volume of corporate bonds issuance. Debt markets lawyers speak to ALB China about the prospects for further growth and the challenges they have had to overcome when advising on debt issuance given the current market conditions.

“A quality publication providing informed, professional information about the legal services sector.”

Dr Liu Wei, Office Managing Partner, Beijing DLa PiPer

“With its in-depth insights, ALB China adds dimensions to China’s legal industry.

This is a big plus for both our lawyers and clients.”

DOng Shuguang, Partner cOMMerce & finance LaW OfficeS

interview with in-House Counsel - p&G Asia pacific GC

P&G’s Asia Pacific GC Michael Qiu, based in Guangzhou, gives ALB China readers valuable insight of the inner workings of the P&G in-house legal function. He also sheds light on the development of the in-house profession and private practice firms in China in the past decade.

China Law Awards 2009 winners Announced!

A complete guide to the who’s who of the China legal profession, complete with analysis of why the winners were chosen by our independent panel and our researchers.

Every issue of ALB China is packed with essential reading for anyone interested in one of the fastest growing and most important legal markets in the world.

• • • • • • • • • •

ALB China watchlist - 10 firms to keep your eye on for 2010 the ALB China 20 - China’s largest 20 firms plus largest 10 international firms in China Employer of Choice – the firms in China that lawyers most want to work for in-house Survey – what do China in-house counsel want? And what are their plans for the year ahead? in-house 10 - annual review of the top general counsel in the country Hot 25 – Legal movers and shakers who have made an impact on the market and industry this year ALB China Fast 10 - the fastest growing firms in China ALB China Law Awards - China’s best lawyers, teams, firms and in-house counsel ALB Special reports series - Beijing, Shanghai, Guangzhou, Tianjin, Shenzhen, Hong Kong, YRD, West China, North East China and Central China international firms in China series - US firms, UK firms, Japanese firms, Korean firms, Singaporean firms, Australian firms, European firms

“Provides us with invaluable access to information on issues affecting law firms in the region.”

MichaeL gagie, PreSiDent Partner, hOng KOng harneyS

“Essential reading for those who want to keep abreast of legal developments in China.”

DaviD BLuMentaL, Managing Partner, Shanghai vinSOn & eLKinS

Yes – start my 12-months subscription to ALB China and rush me the next issue as soon as it is available.

Fill out the form below and fax to Eliz Lee at 852 2815 5225

Please invoice my company USD 290. (Plus an additional airmail charge of USD 34 if you are not based in Hong Kong) Name Company

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Published by Key Media International Ltd., Unit 2706-2708, 27/F, 118 Connaught Road West, Hong Kong

For further information, please contact Eliz Lee at 852 2815 5988 or eliz@kmimail.com

LONDON

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PARIS

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BEIJING

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HONG KONG

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SINGAPORE

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BRISBANE

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MELBOURNE

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PERTH

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SYDNEY

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AUCKLAND

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When the market turns will you be ready?

In-house

Private Practice

Senior Counsel Beijing Well known international technology corporation desires a Senior Counsel to work on China and APac matters. Our client, a Fortune Top 50 US MNC, is looking for superior candidates with strong interpersonal skills and the ability to stand up to challenges. This is a leadership role covering greater China and needs a dynamic candidate. You must have a strong corporate/ commercial background. Knowledge of PRC market and management experience is required. Mandarin fluency is a must. Excellent prospects and remuneration for the ideal candidate. Ref: 5563/AB

Head Patent Attorney (5 yrs exp) Beijing This international law firm is a

General Counsel (8+ yrs pqe) Greater Shanghai Join a growing e-business

and lead the legal team in this high profile role reporting directly to senior management. The work will involve a wide spectrum of corporate commercial matters. Significant transactional experience dealing with PRC business is required. An international background is highly favored as is exposure to the IT, technology or e-business industry. You must be fully bilingual with native level Mandarin and excellent English. Ref: 8146/AB

Senior Patent Attorney (7-10 yrs pqe) Seoul/Beijing This is a director-

level role for a lawyer registered with the US Patent Office. The global company is very unique and offers the opportunity to work on exciting cases focused on biotechnology. Work will involve patent development and coordinating with the invention management team. The incumbent may be located in either Seoul or Beijing. Ref: 8110/AB

Legal Counsel (6-8 yrs pqe) Hong Kong This global industrial company

seeks a seasoned lawyer to fill a sole counsel role covering Hong Kong and Taiwan.

Applicants must have general corporate commercial experience in addition to having worked on PRC JV and/or M&A deals. Candidates who are confident, self sufficient and have the skills to communicate with senior management will excel.

Ability to read and write Chinese, Mandarin and Cantonese, is a prerequisite.

Ref: 8126/AB

Asia Legal Counsel (7+ yrs pqe) Singapore Interesting position within a multinational venture capital seeking a lawyer to handle the North Asia business.

The corporate headquarters are in Singapore and the incumbent may be located in Singapore, Seoul, Tokyo or Beijing. Experience in negotiating complex legal agreements, M&A, IP and general contract work is essential along with crossborder experience. Having worked in a multinational company is desirable, and you must be responsive to changing business conditions. Ref: 8109/AB

specialist in the IP field and is seeking a lawyer to lead a team of patent attorneys.

Candidates must have established prior experience and be a qualified patent lawyer. International exposure is preferred. Excellent communication skills in both English and Chinese are needed. Ref: 8106/AB

Corporate Senior Associate (5 yrs pqe) Beijing Esteemed law firm seeks someone to handle PRC IPO issues, manage M&A deals and do outbound listings work. You should have relevant experience from international law firms or top PRC firms. Familiarity with financial institutions and regulative work is preferred.

The position requires international training and superior client relationship management skills. Mandarin is a benefit. Ref: 8145/AB

Corporate M&A Lawyer (3-5 yrs pqe) Hong Kong Leading firm with significant clients, work and reach has an opportunity for a lawyer with M&A and general corporate commercial experience. Hong Kong qualified applicants will have priority. This is your chance to work on global deals with partners that can truly help you develop your career. It is essential you are bilingual in written and spoken English and Chinese. Ref: 8108/AB Funds Lawyer (2 yrs pqe) Hong Kong Truly international law firm seeks a talented lawyer for a role with a funds focus. For consideration, candidates must be Hong Kong qualified and have solid funds experience. If you have good academics, solid firm training and a vision of career development and progress, we would be happy to discuss this opportunity. Chinese language skills are essential. Ref: 8107/AB

Regulatory PSL Hong Kong This Magic Circle firm needs a PSL to support regulatory, litigation and funds work. Candidates will be required to draft internal and external communication, perform market research and coordinate functions.

The role involves dealing with various global offices and may expand to have Asia regional coverage. Good academics and personality are required. Ref: 8125/AB

Business Development Executive Hong Kong Great opportunity to join this famous law firm as a business development executive. You should come from another law firm or financial institution with relevant experience. The role requires fluent written and spoken English and Mandarin to write pitches and proposals in both languages. Other responsibilities include supporting the BD and marketing managers along with doing market research, directories and credentials. Ref: 8124/AB

HONG KONG Tel: (852) 2520 1168 Fax: (852) 2865 0925 Email: hughes@hughes-castell.com.hk SINGAPORE Tel: (65) 6220 2722 Fax: (65) 6220 7112 Email: hughes@hughes-castell.com.sg

www.hughescastell.com

Sign off >> ►► The world’s top 10 airports Rank

Come fly with me

T

ravelling for business plays a big part in many lawyers’ lives, as demonstrated by our Business Class Travel feature on pages 66–70, and, according to Skytrax, these airports are the best around.

Airport

I

Why/Facilities

1 Hong Kong International Airport

Efficiency and comfort

2 Singapore

Massage/swimming, Ambassador Transit Hotel in Terminals 1, 2 and 3.

3 Seoul

Business centre, shower and massage services, hair salon

4 Kuala Lumpur

Facilities for passengers, comfort and cleanliness of terminals

5 Munich

Miniature golf, a 60-seat cinema, and cosmetic and physiotherapy services

6 Kansai

WiFi and internet facilities, check in ease, transport services

7 Copenhagen

Transport services, auto machine check-in facilities, restaurants.

8 Zurich

Shopping, airport views, ease of facilities

9 Helsinki

Helpful staff

10 Cape Town

Spacious terminal spaces, helpful staff

t appears Eversheds is into staff protection. The UK firm recently requested that associates stay in the safety of their own homes during the G20 summit period, stating that they put “staff safety first” as anti-capitalist protesters threatened to overthrow the City of London.

Those who attended Eversheds’ Cheapside office on the edge of the City were also asked to dress down for two days of the summit.

The firm is one of three UK firms who briefed staff on safety precautions.

Clifford Chance warned staff to be prepared to work from home and to avoid its Coleman Street office, while Ashurst urged staff to take public transport rather than drive into work to avoid the risk of being spotted by protesters.

Source: SkyTrax

A passion for fashion

Asia-Pacific, Japan banking fees fall

I

t seems even lawyers have been swept away by the spirit of Australian Fashion Week.

The offices of leading commercial law firm Kemp Strang doubled as a catwalk and cocktail lounge recently as the firm became the venue for the Leona Edmiston Winter 2009 collection.

The glamorous night was a fundraising event for the Wayside Chapel in Kings Cross, Sydney.

• Year-on-year decline of 28.4% for fees in AsiaPacific, Japan (excluding Central Asia) region • Equity market, M&A and syndicated loans are down. Loans hit most – 35.6% decline Debt market was only segment to experience increase in fees, posting gain of 48.8% from same quarter last year • Mizuho Financial Group topped investment banking fee charts in Asia-Pacific, Japan (excluding Central Asia), with US$136m in revenues (3.7% increase from fees earned in same period last year) • Top fee destination is from the M&A market, with 49.7% of total fees paid for in the AsiaPacific, Japan (excluding Central Asia) region

Crime doesn’t pay for jailed US lawyer A

former partner with a prominent New Orleans law firm, Adams and Reese, has landed himself behind bars after pleading guilty to stealing millions of dollars from the firm and a casino operator.

The partner, James Perdigao, 46, pleaded guilty to charges that included fraud and money laundering. He was sentenced to just over 15 years in prison and ordered to repay about $23 million.

Perdigao was awaiting trial in the fraud case last year when a grand jury pressed new charges, stating that he hacked into his former firm’s computer system and stole confidential correspondence between prosecutors and the firm. He resigned from Adams and Reese in September 2004.

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Asian Legal Business ISSUE 9.5