ISSUE 10.5
Singapore: The Harry Elias split Symptom of the market?
ALB Special Report: Japan 2010 Ready to rebound
Renewable energy Private equity fills the funding gap
Islamic finance
not just for the middle east Lateral moves ISSN 0219 – 6875 MICA (P) 215/07/2009
Deals Roundup Region-wide updates debt & Equity market intelligence
www.legalbusinessonline.com
EDITORial >>
The younger generation: cause for celebration? IN THE FIRST PERSON
S
everal senior partners who are regular attendees at the ALB Law Awards currently underway around the region have noted that each year they’re seeing not only their ‘old’ friends but also a growing number of younger lawyers taking part in the legal industry’s most prestigious series of events.
“Younger lawyers – who are mostly in their 30s – have become an increasingly important force in the legal industry. As the legal and regulatory environment has been changing at an unprecedented rate and magnitude, they appear to be most skilled at learning new things and adapting to the changes,” said one senior partner at the recently held ALB China Law Awards 2010. Senior partners at Jun He, like many other firms in China and other countries around the region, are promoting a growing number of younger lawyers to partner ranks. Currently, thirty-something lawyers account for nearly 50% of the firm’s 95 partners and counsel, up 20% from just two years ago. “Younger lawyers are contributing significantly to business development. They have stronger teamwork ability and a stronger focus on specialised areas of law, so they will contribute to the firm’s further integration and modernisation,” said David Liu, Jun He’s senior partner. Of course, older lawyers will still sometimes make comments about the younger generation, especially those under 30, not fully appreciating the concept of hard work, loyalty and client service. Yet each generation has its unique culture and values. At their core, young lawyers require constant opportunities to learn and challenging work – and they want to be proud of what they do. Young lawyers of today will drive the legal world of tomorrow, a world which is likely to be vastly different from today. Most of the change will be positive.
“It’s tough to say but we hope
there will be further large-scale IPOs. In Japan the IPOs that are big enough to include a global component are small in number but I hope more deals will happen in the typical listing season...” Alan Cannon, Simpson Thacher & Bartlett (p6)
“Feedback from potential clients
was that it was impossible for them to send quality work to a solo practice... I needed to be in a larger law firm” Bryan Ghows, TSMP (p22)
“Indonesia is a country with a population of almost 300 million and is untapped for Islamic finance. It is practically unknown there” Amir Fazael Zakaria, AirAsia (p64)
At their core, young lawyers require constant opportunities to learn and challenging work – and they want to be proud of what they do
www.legalbusinessonline.com
1
| deals>> CONTENTS News >>
contents 62 COVER STORY
ALB’s Leading Islamic Finance Law Firms: Asia In-house lawyers, bankers and industry experts single out the leading Islamic finance law firms across three jurisdictions in Asia: Malaysia, Indonesia and Singapore
NEWS ANALYSIS
FEATURES
8
32 ALB Special Report: Japan 2010 Despite lingering economic difficulties and political uncertainty, things are looking positive for the legal services market. Both local and international law firms are eager to position themselves for when transaction levels pick up
Private equity goes green Deals in Asia’s renewables sector may be flowing, but their small size often leaves a capital gap that needs to be filled. Can PE and VC be to renewables in Asia what it was to dot. coms in the Silicon Valley?
10 The total lawyer ALB looks at Simmons & Simmons’ initiative of sending junior lawyers on an MBA course in legal practice and asks whether this is the start of a trend to build ‘the total lawyer’? 12 Insolvency work: restructuring with a small ‘r’ While the predicted surge of insolvency work after the GFC never materialised in Asia, disappointed insolvency lawyers in the region still have reason to be cheerful
40 Offshore law firms Despite taking a beating from regulators during the financial crisis, offshore financial centres have bounced back to help lead the global economic recovery. The signs are equally as positive for the offshore legal services market, which is set to undergo yet another round of consolidation in the year ahead 48 ALB SE Asia Law Awards 2010 – the finalists All the finalists at this year’s SE Asia Law Awards
have triumphed over adversity. Here is the complete list across all 36 categories 58 Australian law firms in Asia Australian law firms have been in Asia just as long as some of their US and UK counterparts but their practises have not been graced with the same levels of success. ALB looks at the road ahead for Australian firms in Asia and suggests that success may lie with diversification
Regulars 4 DEALS 14 NEWS • ‘Business as usual’ for Thai law firms caught in political unrest • Harry Elias split reflects new market pressures • Clifford Chance swaps Singapore managers
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Legal work abounds as CNOOC spreads wings India and sport big business for law firm Firms close rare PE deal in tough Gulf market
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UK Report US Report M&A deal update Capital markets deal update
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28 REGIONAL UPDATES • China Paul Weiss • Singapore Loo & Partners • Philippines Sycip Salazar Hernandez & Gatmaitan • Vietnam Indochine Counsel • Malaysia Wong & Partners • Indonesia Bastaman Enrico profiles 37 Mori Hamada & Matsumoto 44 Walkers
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NEWS | deals >>
| Singapore/India |
deals in brief
►► Fortis Healthcare– Parkway Holdings acquisition Value: US$658m Firm: AZB & Partners Lead lawyers: Ajay Bhal, Hardeep Sachdeva Client: Fortis Healthcare
HEADLINE DEAL
“This deal illustrates Indian corporates’ appetite for significant and strategic outbound investments. As India’s primacy on the international stage continues to grow we expect to see more of these high-profile acquisitions. The financing also highlights the extent of liquidity in the Indian debt markets” Sanjeev Dhuna, Allen & Overy
| INDIA | ►► Bharti Airtel–Zain (Africa) acquisition Value: US$10.7bn Firm: Herbert Smith Lead lawyers: Michael Walter, Alan Montgomery Client: Bharti Airtel Firm: AZB & Partners Client: Bharti Airtel Susan Wong
Firm: Linklaters WongPartnership Lead lawyer: Charles Jacobs Client: Zain Firm:WongPartnership Lead lawyers: Susan Wong, Choo Ai Leen, Tan Kay Kheng Client: Bharti Airtel
4
acquiring its 15 African mobile networks • Second-biggest overseas purchase by an Indian company; Bharti will be world’s fifth-largest wireless company • Standard Chartered Bank was lead arranger for deal financing – largest ever finance raised for an acquisition by an Indian corporate • AZB previously advised Bharti on its US$23bn failed bid for MTN in September 2009. Linklaters were also previously retained by Zain on its attempted reverse takeover of Paltel • Herbert Smith retained 31 lawyers across twelve practices, from TMT to tax, and worked alongside European alliance firm Stibbe, which was headed by partners Björn van der Klip and Maarten de Bruin
Firm: Allen & Overy Lead lawyers: Sanjeev Dhuna, Karan Singh Client: Standard Chartered Bank
• A&O worked alongside Indian ‘best-friend’ Trilegal, which provided local Indian law advice, led by partner Karan Singh
• Indian telco Bharti Airtel bids US$10.7bn for the African business of Kuwaiti telco Zain,
• WongPartnership acted as Singapore counsel for Bharti Airtel’s raising US$7.5bn from consortium of lenders
Firm: Rajah & Tann Lead lawyers: Goh Kian Hwee, Kala Anandarajah, Evelyn Wee Client: Fortis Healthcare Firm: WongPartnership Lead lawyer: Dilhan Pillay Sandrasegara Client: TPG Capital • TPG Capital sold 23.9% stake in Parkway Holdings to Fortis Healthcare for S$959m, which willbecome one of Asia’s largest hospital networks • Fortis previously retained Indian firm Vaish Associates for its acquisition of Wokhardt in 2009 • Cross-border transaction spanning Singapore, Mauritius and India
| KOREA | ►► Korea Life Insurance Global IPO Value: US$1.6bn Firm: Shin & Kim Client: Underwriters Firm: Davis Polk & Wardwell Lead lawyer: Eugene Gregor Client: Underwriters Firm: Simpson Thacher & Bartlett Lead lawyers: Youngjin Sohn, Kristina Kang, Soo Chung Client: Korea Life Insurance Firm: Lee & Ko Client: Korea Life Insurance • Global offering by Korea Life Insurance of 217 million shares on Korea Exchange • KLI is both oldest and secondlargest insurance company in Korea • Largest Korean IPO since 2006, second-largest IPO in Korea ever, including dual-listed IPOs • Four lawyer team at DP&W, seven
lawyer team from Simpson Thacher retained on transaction
| HONG KONG | ►► SouthGobi Energy Resources IPO Value: US$438m Firm: Skadden Lead lawyers: Dominic Tsun Client: Underwriters Firm: Blakes, Cassels & Graydon Client: Underwriters Firm: Goodmans Lead lawyers: Paul Goodman Client: South Gobi Firm: Dorsey & Whitney Lead lawyer: David Richardson Client: South Gobi • Toronto-listed SouthGobi Energy Resources secondary listing of shares on HKSE • First listing by Canadian mining company on HKSE and the first listing by any Canadian company in conjunction with share offering
| JAPAN | ►► EQT Greater China II–Japan Home centre acquisition Value: Undisc Firm: Woo Kwan Lee & Lo Client: Shareholders Firm: Baker & McKenzie Lead lawyers: Cheung Yuk Tong, Tracy Wut Client: EQT Greater China II
Tracy Wut Baker & McKenzie
• PE fund EQT Greater China II acquires co-controlling stake in discount house-ware retail chain in Hong Kong, Japan Home Centre (“JHC”) • EQT has 40% ownership in JHC while the two founders, Peter Lau and Lisa Ngai, have together retained a 60% stake • Baker & McKenzie advised on documentation and general transaction management Asian Legal Business ISSUE 10.5
NEWS | deals >>
| Saudi Arabia | ►► Kingdom Holding Company–Kingdom Hotel Investments acquisition
►► your month at a glance Firm
Value: US$843m Firm: Dewey & LeBoeuf Lead lawyers: Camille Abousleiman, Simon Briggs Client: Kingdom Holding Company Firm: Linklaters Lead lawyers: Nick Garland, Jeremy Parr Client: Kingdom Hotel Investments Firm: Freshfields Client: Citigroup and Deutsche Bank • US$843m acquisition of Kingdom Hotel Investments by Kingdom Holding Company, owned by Saudi Royal family. KHC already owned 46% and bought out the remaining stake in this acquisition for US$370m • Before it became Dewey & LeBoeuf through 2007 merger Dewey had acted for Kingdom Hotel Investments (target on this transaction) advising on its IPO, first listing on the Dubai International Financial Exchange • Also previously advised KHC in 2007 on its bid for a GSM license • Linklaters acted through its Dubai and London offices
Allen & Gledhill
Firm: Anderson Mori & Tomotsune Lead lawyer: Hironori Shibata Client: Managers Firm: Sullivan & Cromwell Lead lawyer: Izumi Akai Client: Managers Firm: Simpson Thacher & Bartlett Lead lawyer: Alan Cannon Client: Dai-iChi Life
Value Deal type (US$m)
Singapore
Lippo Group loan facility
410 Debt market
Singapore
Singapore Post notes issue
150 Debt market
Singapore
Integrated Media Fund establishment
Singapore
PT Bakrieland Development bonds issue
Singapore
Temasek Holdings' notes series issue
Singapore
Singapore Airport Terminal Services MTN
357 Debt market
Singapore
Ruby Assets exchangeable collateralised securities due 2019
250 Debt market
Singapore
CVC Capital Partners Asia Pacific III–PT Matahari Department Store acquisition
823 M&A
70 PE 155 Debt market Undisc Debt market
Singapore
SingTel Group Treasury issuance of 3% notes 2020
India/Africa
Bharti Airtel–Zain (Africa) acquisition bid
Allens Arthur Robinson
China/Australia
Chinalco–Rio Tinto JV
Anderson Mori & Tomotsune
Japan
Dai-ichi Life IPO
India
Wireless TT Info Services–21st Century Infra Tele acquisition
280 M&A
India/S’pore/Mauritius
Fortis Healthcare–Parkway Holdings acquisition
658 Debt market
India
Hitachi–Telcon stake acquisition
250 M&A
India
SKIL Infrastructure–Pipavav Shipyard stake acquisition
India/Africa
Bharti Airtel–Zain (Africa) acquisition bid
10,000 M&A
India
Reliance Industries–Deccan Cargo & Express Logistics investment
Undisc Corporate
Singapore/Thailand
PTT Public Company loan
AZB & Partners
Baker & McKenzie
500 Debt market 10,000 M&A 1350 Energy & resources 18,500 Equity market
310 M&A
300 Debt market
Hong Kong
EQT Greater China II–Japan Home Centre stake acquisition
China/Australia
Chinalco–Rio Tinto JV
Blakes, Cassels & Graydon
Hong Kong/Canada
SouthGobi Energy Resources IPO
Clifford Chance
Saudi Arabia
Carlyle Group–General Lighting Company stake acquisition
Undisc Private equity
Commerce & Finance
China
China Merchants Bank rights offering
3,200 Equity market
Conyers Dill & Pearman
China
China Lodging Group IPO
Crawford Bayley & Co
India
NMDC stake sale
2,200 Equity market
Korea/US
Korea Life Insurance Global IPO
1,600 Equity market
India/Singapore
Morgan Stanley Infrastructure consortium–Asian Genco investment
425 Energy & resources
China
China Lodging Group IPO
126 Equity market
| JAPAN | Value: US$18.4bn
Deal name
Allen & Overy
Davis Polk & Wardwell
►► Dai-ichi Life IPO
Jurisdiction
Dewey & LeBoeuf
China
China Merchants Bank rights offering
Saudi Arabia
Kingdom Holding Company–Kingdom Hotel Investments acquisition
Saudi Arabia
Carlyle Group–General Lighting Company stake acquisition
DLA Piper
Hong Kong/Korea
Fila Korea note issue
Dorsey & Whitney
Hong Kong/Canada
SouthGobi Energy Resources IPO
Saudi Arabia
Kingdom Holding Company–Kingdom Hotel Investments acquisition
Freshfields
China
China Merchants Bank rights offering
Bahrain
Central Bank of Bahrain international bond issue
Gibson Dunn & Crutcher
Saudi Arabia
Carlyle Group–General Lighting Company stake acquisition
Gide Loyrette Nouel
India
NMDC stake sale
Goodmans
Hong Kong/Canada
SouthGobi Energy Resources IPO
Hariyani & Co
India
Matheson Tri-Gas–K-Air Gases India JV
Undisc M&A/PE 1,350 Energy & resources 438 Equity market
126 Equity market
3,200 Equity market 843 M&A Undisc Private equity 50 Debt market 438 Equity market 843 M&A 3,200 Equity market 1,250 Debt market Undisc Private equity 2200 Equity market 438 Equity market Undisc M&A
Singapore
Develica APS 100 sale
110 Real estate
Firm: Nishimura & Asahi Lead lawyer: Yasutaka Nishikori Client: Dai-iChi Life
Harry Elias Partnership
Singapore
Schlumberger SA–Geoservices SA acquisition
800 M&A
Singapore/China
Eagle Brand Holdings divestment
Hassan Radhi & Associates
Bahrain
Central Bank of Bahrain international bond issue
• Dai-ichi Life on Rule 144A and Regulation S offering on Tokyo Stock Exchange
Herbert Smith
www.legalbusinessonline.com
Hourani & Associates
80 Corporate 1250 Debt market
India/Africa
Bharti Airtel–Zain (Africa) acquisition bid
China
China Merchants Bank rights offering
10,000 M&A 3,200 Equity market
Saudi Arabia
Carlyle Group–General Lighting Company stake acquisition
Undisc Private equity
5
NEWS | deals >>
►► your month at a glance (CONT) Firm
Jun He
Jurisdiction
Deal name
China
China Lodging Group IPO
China
China Merchants Bank rights offering
Value Deal type (US$m) 126 Equity market 3,200 Equity market
India/Japan
Blackstone Group–Jagran Media Network investment
India
NECL–Machilipatnam Port acquisition
India
Hospira–Orchid asset acquisition
India
Shree Ganesh Jewellery House IPO
India
United Bank of India IPO
India
KSK Power Ventur AIM listing
Korea
KDB Consus Value PEF–Kumho Life Insurance acquisition
435 M&A
Korea
Eastman Fibers Korea–SK Chemicals acetate asset acquisition
109 M&A
Korea
Inverness–Standard Diagnostics acquisition
Lee & Ko
Korea/US
Korea Life Insurance Global IPO
India/Africa
Bharti Airtel–Zain (Africa) acquisition bid
Linklaters
Saudi Arabia
Kingdom Holding Company–Kingdom Hotel Investments acquisition
Bahrain
Central Bank of Bahrain international bond issue
India
GMR Group Maharashtra power project
Khaitan & Co
Kim & Chang
Luthra & Luthra
54 Private equity Undisc M&A 392 M&A 78 Equity market 72 Equity market Undisc Equity market
190 M&A 1,600 Equity market
585 Project finance
Japan
Dai-ichi Life IPO
18,500 Equity market
India
GoAhead Software–Avantellis acquisition
Undisc M&A
Japan/US
Sanei–Kate Spade JV
Undisc Corporate
Japan
Nippon–Dow AgroSciences Tebufenozide Insecticide Business acquisition
Undisc M&A
Paul Hastings
Hong Kong
Intime Department Store share sale
Quays H Zubi
Bahrain
Central Bank of Bahrain international bond issue
India/S’pore/Mauritius
Fortis Healthcare–Parkway Holdings acquisition
658 M&A
Singapore
Yangzijiang–PPL Holdings bid
155 M&A
Rodyk & Davidson Shin & Kim
Simpson Thacher & Bartlett
Skadden Stamford Law
Sullivan & Cromwell
Wakhariya & Wakhariya Watson Farley & Williams White & Case
100 Equity market 1,250 Debt market
Singapore
Yangzijiang–PPL Holdings bid
155 M&A
Korea
KDB Consus Value PEF–Kumho Life Insurance acquisition
435 M&A
Korea/US
Korea Life Insurance Global IPO
China
China Lodging Group IPO
Korea/US
Korea Life Insurance Global IPO
Hong Kong
PFH Partnership–Chapdelaine stake acquisition
Japan
Dai-ichi Life IPO
Hong Kong/Canada
SouthGobi Energy Resources IPO
Singapore/China
China Minzhong IPO
Singapore
Cairnhill Circle development
1,600 Equity market 126 Equity market 1,600 Equity market 100 Private equity 18,500 Equity market 438 Equity market 169 Equity market Undisc Construction
Hong Kong
PFH Partnership–Chapdelaine stake acquisition
100 Private equity
Japan/US
Union Bank–Tamalpais Bank acquisition
600 M&A
Japan
Dai-ichi Life IPO
18,500 Equity market
India
Matheson Tri-Gas–K-Air Gases India JV
Undisc M&A
Singapore/UK
Standard Chartered Bank–Bibby Offshore loan facility
Hong Kong
Pacific Century Group–AIG investment business acquisition
55 Debt market 500 M&A/PE
Indonesia
PT Semen Gresik sale
Hong Kong
Aegis–Charm Communications investment
50 Corporate
Singapore
Singapore Airport Terminal Services MTN
357 Debt market
WongPartnership
India/S’pore/Mauritius
Fortis Healthcare–Parkway Holdings acquisition
658 M&A
India/Africa
Bharti Airtel–Zain (Africa) acquisition bid
10,000 M&A
Woo Kwan Lee & Lo
Hong Kong
EQT Greater China II–Japan Home Centre stake acquisition
Undisc M&A/PE
Zhong Lun
China
China Lodging Group IPO
Winston & Strawn
1,000 M&A
126 Equity market
Does your firm’s deal information appear in this table? Please contact
6
alb@keymedia.com.au
• Alan Cannon recently advised on Japan’s largest securities offering seen in a decade, MUFJ Financial Group’s US$12bn IPO, and said given the size of this offering may not see any larger this year
843 M&A 1250 Debt market
Nishimura & Asahi
Rajah & Tann
• Hopes pinned on Dai-ichi’s billion-dollar listing to boost market sentiment. Japan’s bourse suffering from a dearth of listings compared to glory days of 6 years ago – according to Dealogic the 20 companies listed last year raised a total of only US$603m
10,000 M&A
Nishith Desai Associates Orrick
• World’s biggest IPO in 2 years, also largest in Japan since US$18.4bn IPO of NTT DoCoMo over a decade ago
61 2 8437 4700
| BAHRAIN | ►► Central Bank of Bahrain international bond issue Value: US$1.25bn Firm: Freshfields Lead lawyers: Harnek Shoker, Tobias Müller-Deku, Fares Al-Hejailan Client: CBB and Ministry of Finance Firm: Quays Zubi Client: Ministry of Finance Firm: Linklaters Client: Joint lead managers Firm: Hassan Radhi & Associates Client: Joint lead managers • Central Bank of Bahrain (CBB) on US$1.25bn international bond issue – size increased to US$1.25bn to meet investor demand
Harnek Shoker Freshfields
• First bond issue of its size and format in Bahrain, offering marketed to investors in the US, Asia and Europe • Freshfields utilised new Saudi alliance with Fares Al Hejailan, and London offices partners • CBB has been good source of work for Bahrain-based law firms – Hassan Radhi, Trowers & Hamlins and Charles Russell were retained on past deals, latter two as administrators for two troubled local banks in August 2009 Asian Legal Business ISSUE 10.5
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NEWS | analysis >>
Analysis >>
PE goes green Renewable energy is quickly becoming big business for investors, developers and, not least, lawyers across the region. Most countries in Asia, from China and India to Thailand and the Philippines, are expected to invest heavily in renewables over the next five years. But many lack a solid policy framework. This, as well as the typical deal size being smaller, has left a capital gap that needs filling. Private equity and venture capital is becoming the common choice for filling that gap
8
State of the market
T
he last year or so has been a time of immense change for renewables in Asia, spurred on by a seemingly collective regional recognition that greenhouse gas emissions need to be reduced and energy security and independence need to be secured. Most of the region’s biggest economies have made positive inroads in terms of developing sustainable renewable energy policies. “Climate change and the need to reduce greenhouse gas emissions, while achieving developmental goals, are the key drivers for almost all energy markets in Asia,” said Paul Curnow, cohead of Baker & McKenzie’s Asia-pacific renewable and clean energy practice. “More focus has been placed on bringing in renewable energy as a substantial component to meet energy needs.” India and China continue to lead the way in this regard, both in Asia and globally. Both countries are in the world’s ‘top-five’ in terms of the amount of installed renewable energy. “India and the PRC both have a preferential feed-in tariff system in place to drive investment in renewables. Both have tariffs that are higher than the
normal electricity price for coal or gas for a range of renewable energy technologies,” said Curnow. This has meant that wind has become the renewable of choice in both countries. According to the Wind Energy Council, China was ranked third globally for cumulative wind capacity (25,104MW; 15.9% of the global market) while India ranked fifth with current capacity of 10,926MW or 6.9% of global market share. ►► Top global clean-tech venture capital sectors in 2009 Smart grid US$414m
Water US$117m
Solar US$1.2bn
Biofuels US$554m Energy efficiency US$1bn
Transportation (including electricdrive vehicles, batteries, fuel cells) US$1.1bn
Source: Deloitte Asian Legal Business ISSUE 10.5
NEWS | analysis >>
Elsewhere in the region, regulators are also making good inroads bringing their industries up to speed with Asia’s two powerhouse economies. “Thailand has put in place a system of feed-in tariffs, the Philippines has a framework law in place, while Malaysia has said that it intends to bring in something by 2011,” said Curnow. “Indonesia has not formalised a feed-in system at the legislative level but does have tariffs around geothermal projects.”
emanate from the fact that policy frameworks around renewable energy in Asia are still in their infancy. Legal advisers can help their clients understand and therefore minimise the risks, but the other problem – access to capital – is less easily resolved. “Once you move out of China, India and even Australia, project sizes become a lot smaller. When you look at renewable potential in South-East Asia a lot of it is focussed around small hydro,
“The market environment is challenging and the cost of capital has increased dramatically. In addition, the price of oil and natural gas has declined, which makes renewable energy less attractive” Parker Weil, Bank of America Merrill Lynch In a policy-driven area such as renewables, the importance of cogent and workable regulatory frameworks cannot be underestimated. Curnow said the fact that activity here has increased substantially since the turn of the year may indicate that countries in the Asian region have the legislative mix right. “At the moment the market [in Asia] is dominated by utilities that are diversifying their own portfolios. In a lot of countries you have governmentowned utilities looking to build out their generating capacity in renewable. From a financing point of view, a lot of that is on their balance sheets, but is also occurring with a lot of debt financing from local banks,” he said. At the same time a number of boutique renewable energy developers based out of Europe, Japan and Korea, plus big names like Suzlon and Siemens, are entering the renewables markets in Asia. They are making the transition downstream from simply constructing energy technologies such as wind turbines to actual project development. But despite a wealth of companies looking to tap into Asia’s renewable energy sectors, some real challenges to their entry remain. “In terms of project finance, several banks here have been involved in lending across the region but there are still a lot of barriers due to perceived risks and the size of the projects,” said Curnow. These perceived risks ostensibly www.legalbusinessonline.com
biomass, wind and solar. The generating capacity is small, as are the projects from a capital needs point of view,” Curnow said. “Most banks are not really interested in projects less than US$50m, but a lot of these projects only have capital needs of US$5-10m, so there is a gap in terms of getting interested players to come in.” Parker Weil, co-head of the Bank of America Merrill Lynch’s energy and investment banking group, agrees with Curnow’s assessment and said that the financial crisis has also limited the amount of financing available for renewables projects. “The market environment is challenging and the cost of capital has increased dramatically. In addition, the price of oil and natural gas has declined which makes renewable energy less attractive.” Weil also pointed out that the troubles experienced by US banks has impaired their ability to use tax equity financing, once a staple of renewables project finance deals. “Tax equity [the selling of the projected dollar value of tax credits at a discount to finance projects] was
the oil that was lubricating [renewable energy project finance], because it’s low-cost and the financial benefits are easily quantifiable and certain,” he said. “[But] it offsets taxable earnings, so if you can’t use the deduction there’s a problem going forward – one that’s not easily solved.” The expected rate of return on a tax equity investment used to be in the vicinity of 6% but now that it has risen the cost of capital from a project developer’s perspective has increased. “That’s consistent with the cost of capital across industries and investment types. The cost of debt and equity has increased. You need to pay a higher new issue premium and bigger discounts to get deals done,” Weil explained.
PE’s green play
In light of these difficulties, private equity and venture capital’s increasing interest in renewables is opportune. Over the past year, PE and VC investment in this sector was one of the few bright spots for project finance work. Whereas global project finance volumes retreated to Asian financial crisis levels during 2009, PE- and VC-backed project finance deals fared substantially better – so much so that 25% of all these investments in 2009 were in the clean-tech sector. “What we have started to see recently is investment from PE funds,” said Curnow. “If you look at the US and Europe this has been happening for some time now, but because of the substantial growth opportunities on offer in Asia their attention is turning [there].” While this phenomenon is still in its early days in the region, a number of trends are already becoming salient. “Many PE players are looking at making their entry through fund investment rather than into the assets themselves,” Curnow said. “This is usually the case where these PE
“Once you move out of China, India and even Australia, project sizes become a lot smaller. When you look at renewable potential in South-East Asia a lot of it is focussed around small hydro, biomass, wind and solar” Paul Curnow, Baker & McKenzie 9
NEWS | analysis >>
players are new to the sector and don’t have their own large internal teams to do their own analysis on the assets.” Interest also extends to corporate finance. Here, PE and VC players are keen to invest in project developers by taking an equity interest in the companies who are developing the projects and are going to be sitting on generating assets. Legal practitioners tip that both these areas will grow as PE and VC operatives become more familiar with the different renewables markets across Asia, and the quickly changing regulatory regimes underpinning them. “As we see PE players become more familiar with markets in Asia, they should start looking at making direct investments themselves,” Curnow said. “I would suspect that those equity investments would be smaller … perhaps a minority interest placed across a number of different projects across a number of different countries.”
Analysis >>
The legal work
Lawyers note that once investments reach this stage, the issues that come into consideration aren’t dissimilar from those confronting PE and VC investments in any other sector. Yet in reaching this point the role that lawyers have to play could not be more important. Practitioners ALB spoke to are all busy conducting client information seminars, briefings and workshops on investment opportunities, perceived risks, and basic regulatory and policy drivers behind renewables in Asia. Lawyers who have already enjoyed success in this area posit a direct relationship between these client-facing activities and future business. Notwithstanding this, the key for law firms looking to take the lead in this area depends not only on how well they can leverage their pre-existing energy & resources skills and expertise, but also on the extent to which they can serve as a missing link between their clients and projects, developers and financing sources. According to conversations held with industry professionals, those firms which are also able to shepherd ‘green clients’ through the whole process – from regulatory advice and due diligence to project management, post investment and commissioning – will also be in high demand. ALB 10
The total lawyer Simmons & Simmons’ recent announcement that it would defer the start dates for some of its 2010 graduate trainees was not unusual − many of the firm’s international counterparts have announced similar moves to reduce the strain on their budgets in the wake of the financial crisis. More remarkable was the firm’s decision to send some of its ‘class of 2010’ on an MBA program. Indeed this may be the start of moves to build the ‘total lawyer at a much earlier career stage. ALB investigates Asian Legal Business ISSUE 10.5
NEWS | analysis >>
I
n the 1970s, Dutch coach Rinus Michels turned 100 years of football strategy on its head when he devised the concept of “total football” – totaalvoetbal. The sporting concept was simple: each player on the pitch had no nominal role but was instead expected to play as an attacker, midfielder or defender depending on the passage of play. The strategy was so successful that it saw Michels’ team at the time, Ajax Amsterdam, dominate European football and the Netherlands national team come agonisingly close to clinching its first World Cup. The success on offer for law firms who embrace a similar concept could also be great. The total lawyer cannot of course be expected to offer specialist legal advice on all practice areas. The total lawyer should, however, be better able to understand the pressures facing clients. In essence, the total lawyer is one who is best able to also play the role of the client.
The total lawyer
Earlier this year London-based international firm Simmons & Simmons paired up with Londonbased educational provider BPP Business School to launch an MBA (Legal Services) course specifically tailored to lawyers. The one-year course is designed to create “firstrate, commercially astute lawyers capable of offering legal advice based on an understanding of the business context.” In other words, to give Nick Benwell young lawyers a deeper Simmons & appreciation of the Simmons real-world financial pressures acting on their clients. “The MBA will give our future trainees a great headstart in terms of gaining commercial business skills, but the skills they acquire will remain with them for life,” said Simmons partner Nick Benwell. Nick Seddon, managing director of Eversheds in Hong Kong, believes such initiatives are long overdue, even if they are coming out of the UK. Any program that brings lawyers closer to their clients may be a crucial www.legalbusinessonline.com
factor helping law firms separate themselves from the competition in an increasingly saturated legal services market. “You will see law firms in Asia following Seddon what is happening in the Nick Eversheds UK because it is vital to their future success,” Seddon said. “Asian clients can sometimes be more demanding than those in the US or the UK because there is potentially more cost pressure on them, and as a result lawyers here need to be more than just draftsmen,” he said. “Most lawyers do not worry about the continued existence of their firm – very few law firms go bust, but a number of businesses do. To be able to understand this, to appreciate the pressure that clients are under, is greatly valued and definitely a factor
courses such as an MBA are becoming critical for lawyers today – but training in areas like management, teamwork and being able to work with people from all different sorts of backgrounds with all different types of emotional make-ups is just as important.” These skills, Pe said, means that MBA holders have a clear advantage in the legal job market. “When I look at CVs and see someone has MBA qualifications it certainly piques my interest. Of course one has to consider where the qualifications were obtained, but it is fair to assume that most MBA graduates from good schools have been through an incredibly rich and challenging learning experience, where they Robert Pe have learnt leadership Orrick and management skills
“You will see law firms in Asia following what is happening in the UK because it is vital to their future success. Asian clients can sometimes be more demanding than those in the US or the UK because there is potentially more cost pressure on them, and as a result lawyers here need to be more than just draftsmen” nick seddon, eversheds
which separates great lawyers from good lawyers.” Robert Pe, a partner with Orrick in Hong Kong, said that the business and financial skills learnt through an MBA program offered lawyers more. “One does get a heightened understanding of the commercial drivers acting on clients and how to demonstrate that you are adding value,” he said. “In this sense, an MBA adds skills to your repertoire and also enhances those that you already have.” He undertook a two-year MBA course at London Business School, and is quick to point out that the benefits of an MBA extend beyond client relation skills. The business development and management skills obtained also assist lawyers in building their own profitable practice. “Of course the skills in entrepreneurship that one gains from
and how to work with a commercial outlook.” MBA holders aren’t of course the only lawyers that possess these skills, but without specific training and education in the area, it is unlikely the average lawyer will have the requisite level of these skills until much later in their careers, when they have been taught through experience. As law firms across the region – both international and domestic – become younger, the need for junior-level lawyers with these attributes is all the more important. While building the ‘total lawyer’ is an obvious goal, it seems that taking a leaf out of Simmons’ book of professional development and building total lawyers as early as possible in their career could become an imperative for leading firms – GFC or not. ALB 11
NEWS | analysis >>
Analysis >>
Insolvency work: restructuring with a small ‘r’ While the predicted surge of insolvency work after the GFC never materialised in Asia, disappointed insolvency lawyers in the region still have reason to be cheerful
T
he financial crisis presented a lucrative opportunity for firms to beef up their insolvency & restructuring practices for the predicted surge in insolvency cases. “Accountants and insolvency practitioners became very excited when the GFC was in full swing,” said WongPartnership litigation and arbitration partner, Sean Yu Chou. “There were hopes for company collapses which provide lucrative
hires. But apart from a handful of headline corporate failures at the time, such as Lehman Brothers and more recently Japan Airlines, the expected levels of work never eventuated. “The surge of insolvency work following the GFC did not materialise as many in the region predicted,” said Linklaters partner Melvin Sng. “Government stimulus programs had pumped a massive amount of liquidity into the world’s economies. This
“Accountants and insolvency practitioners became very excited when the global financial crisis was in full swing. There were hopes for company collapses which provide lucrative liquidation and administration work” SEAN YU CHOU, WONGPARTNERSHIP liquidation and administration work.” Ready and waiting, some law firms went into urgent recruitment mode for extra staff, transferring lawyers Sean Yu Chou from other practices to WongPartnership handle insolvency work or building capacity through lateral 12
enabled many stressed companies to refinance their maturing obligations – and government rescue plans also allowed banks to shore up their balance sheets.” Head of Clifford Chance’s Asian restructuring practice Scott Bache agrees, confirming that Asia’s relatively well-performing economies meant t a lower number of insolvencies.
►► singapore COMPANIES IN COMPULSORY LIQUIDATION – 2010 Cases 30 25 20 15 10 5 0
Jan
Feb
Petitions filed
Mar Companies wound-up
Source: Insolvency Public Trustees Office
“In this region we have not seen the predicted wave of insolvencies post-GFC, [but] we have seen plenty of restructuring with a small ‘r’ – refinancings and revisions to agreements,” he said. “Also, with respect to China there have been many onshore/offshore financings that continue to be in default, as the offshore investors Asian Legal Business ISSUE 10.5
NEWS | analysis >>
have had considerable difficulty using their offshore rights to go over the border into China and get closer to the operating assets. Until China passes reforms allowing offshore equity Scott Bache Clifford Chance holders to use their voting rights to displace directors that are not cooperating with a consensual restructuring process, it is hard to see this position changing in the foreseeable future.” Banks also took a more tolerant approach to debt. “There were not many instances where creditors ‘pushed the button’ and went ahead with fully enforcing their rights,” said Chou. “Many have endeavoured to achieve consensual restructuring.” Bank creditors have experienced inhouse teams that can effectively handle these restructuring arrangements without the need for complex and contentious work – what necessitates and excites insolvency lawyers.
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The more obvious reason why Asia has not seen a blow-out in insolvency work is because government stimulus programs kept the world economy liquid and banks’ balance sheets strong. However, Linklaters’ Sng points out that the government injection of liquidity among the domestic banks will not last forever and consequently those weaker companies – both in and
problems in Asia – of overcapacity in some economies and high leverage in certain sectors – remain unresolved. As the effects of the liquidity boost wear off in 2010, even stronger companies may need to restructure or refinance their debt. Certain sectors of the economy, including manufacturing and shipping, may come under particular stress.
“Although in Asia markets have rebounded more quickly than elsewhere, the recovery is still very fragile and there is a sense that a second dip may be round the corner” MELVIN SNG, LINKLATERS out of Asia – will cease to have access to cheap money. “If the macroeconomic environment and the appetite of banks to lend do not improve sufficiently to offset the withdrawal of government stimulus programs, weaker corporates will need to restructure their debts or go insolvent,” Sng said. He added that the fundamental
“Although in Asia markets have rebounded more quickly than elsewhere, the recovery is still very fragile and there is a sense that a second dip may be round the corner,” Sng said. “We therefore anticipate a further round of corporate defaults to generate increased insolvency and restructuring work.” ALB
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INDUSTRY >>
uk report SJ Berwin court Proskauer Rose for merger Its scope would always have been much narrower, but the talks around a merger between West Coast-headquartered US firm Orrick and UK player SJ Berwin were already underway even before the Hogan-Lovells merger had actually come into effect. Some industry observers saw the Orrick-SJ Berwin tie-up as the first in a possible series of UK-US reactions to the Hogan-Lovells coup. Alas, the talks fell over as most such discussions do – in the early stages. Not to be deterred, though, SJ Berwin is already pressing ahead with another potential US partner – Proskauer Rose. This merger is said to be driven by the funds practices of the two firms, who already have a working relationship. The combined firm would have revenues of approximately US$900m, putting it in the global top 30 by revenue. Part-timers patch up capacity at Freshfields An anticipated upturn in work levels later this year has prompted Freshfields to consider tapping
into its network of alumni to handle increased workloads. Given the working title “Fresh Work”, the scheme is aimed at former fee-earners who might be available to work either part-time or on a short-term basis during busy periods. Changes afoot for associate salaries in 2010 Clifford Chance has followed suit behind Freshfields to become the latest Magic Circle firm to unfreeze associate salaries. The firm raised rates for assistants as well as allowing them to progress through the lockstep system. From 1 May, associates and trainees will enjoy increased rates by an average of 3%– NQs will now earn £61,500, up from £59,000 last year. An associate with one year’s PQE will now take home £68,000 and three-year PQE salaries have increased to £84,500. Trainees will also benefit from a small salary increases: first and second years will now earn £38,000 and £43,000. Meanwhile, Linklaters has announced its associate pay scale for the coming year, maintaining its current rates after a reduction 12 months ago.
Job vacancies A
s major banking & financial institutions in Asia look to recoup post-financial-crisis talent shortages, so too it seems are firms. Signs of the renewed recruitment market for banking & finance lawyers are popping up everywhere – banks such as Citigroup, BoA Merrill Lynch and UBS are offering lucrative pay packets and bonuses in-house to fill talent shortages following the financial crisis. And according to recruitment firms, demand from the financial services industry and other sectors is being transferred to private practice. “Banking & financial service has seen the greatest legal jobs growth over the last three months,” said Carolyn Dickason, regional director of Hays Legal. “Firms have an ongoing need to identify banking & finance lawyers who have handled matters with the
THAILAND >>
‘Business as usual’ for
ROUNDUP • DLA Piper recently appointed a 19-lawyer team from Simmons & Simmons to enhance the capabilities of its existing 100-strong lawyer practice operating from Milan and Rome. The team includes four partners • Lovells promoted 21 lawyers to its partnership this year in the litigation, IP and finance practice areas. It is the firms largest promotion since 2007, compared to the 19 and 18 made up in 2009 and 2008 respectively • Addleshaw Goddard litigation partner Monica Burch has won the partnership’s backing to succeed senior partner Paul Lee following a contested election for the position of chairman of the firm’s board. Burch will take over from former managing partner and current chairman of the LLP Mark Jones • Konstantin Mettenheimer and Guy Morton recently announced that they would not be taking on third terms as joint senior partners at Freshfields Bruckhaus Deringer. An election campaign is likely to be held in autumn, but the firm is yet to decide whether it will continue having a joint senior partner or instead opt for one lawyer to take on the role • Scott Bowie was recently appointed to succeed Tim Shipton as head of Linklaters global investment management team. Shipton will continue in his role as co-head of Linklaters’ investment managers • Reed Smith recently recruited four senior construction partners from Pinsent Masons, boosting its construction practice and leaving Reed Smith with just two London-based construction partners • Walker Morris is set to scrap its executive chairman role once current chairman Peter Smart retires in May 2011. The role of executive chairman will be replaced by a non-executive chairman and managing partner
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Asian Legal Business ISSUE 10.5
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rocket as recovery gathers pace
leading financial institutions.” Norton Rose, fresh from its Australia merger with Deacons, is among the more aggressively hiring firms. As of mid-May it was offering a total of 45 vacancies in Asia-Pacific (see table), the majority of which were in corporate and banking. ALB
►► Norton Rose – Asia-Pacific vacancies as of 12 May 2010 Location
Number
Gulf
2
Australia
29
Greater China
11
Japan
3
Thai law firms caught in political unrest
L
aw firms in Thailand with offices on the main road where the military and protestors were standing off continued to operate as usual, despite fears the street could become a battleground between angry protestors and armed troops. Red-shirt protestors opposed to the government pushed into the “Wall Street” of Thailand, on Silom Road, where many of the country’s top international and domestic law firms are located. One of those is Blumenthal Richter & Sumet, an international law firm located on the intersection of the Silom and Rama IV roads. “I can see [the protest] outside my window actually, in the intersection where the Dusit Thani Hotel is. You can hear the protestors’ loudspeakers from here,” said partner Ira Blumenthal at the time. “Right below our office, there are troops blocking off Silom road, and on the other side you have the protestors. So there’s a kind of standoff happening and nobody’s really doing anything.”
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The political unrest, which has raged on for more than a year now, has been affecting the flow of inbound foreign direct investment work for local law firms. Some clients cancelled business trips indefinitely, as embassies issued travel warnings. “There is uncertainly as to what’s going to happen next,” said Blumenthal. “We’ve had a lot of clients rescheduling cancelled meetings until things are clarified.” There is hope that will soon change. Herbert Smith’s Bangkok office is situated in the same building as Blumenthal’s and office managing partner Alistair Henderson said that although the pace of work had slowed, the firm continued to receive significant instructions from regional clients wanting to do business in Thailand. “Work hasn’t disappeared – there is definitely work to be done,” he said. “We’re receiving instructions and talking to clients looking to expand operations or set up here. Morale is holding up quite well.” ALB
news in brief >> FoxMandal gets closer to legal industry regulator FoxMandal Little’s Noida office played host to the new newly constituted Bar Council of Delhi’s newly elected office bearers – chairman KK Sareen, vicechairman Jaibir Singh Nagar, and honorary secretary Nitin Ahlawat, and others. The firm said it was “very keen” to host the event as the Bar has a significant role in regulating the legal profession. “[We] regularly get queries from law firms the world over on regulatory issues of the Indian Legal System and the firm intends to work closely and seek guidance from the Delhi Bar Council in view of the exploding Indian economy and opening up of various service sectors,” said managing partner Som Mandal.
Clifford Chance plugs gap in Asia capital markets team Clifford Chance has reorganised its capital markets practices in Singapore and Hong Kong in the wake of Hong Kong partner Alex Lloyd’s move to Sidley Austin (see appointments p24). CC has filled Lloyd’s position by relocating head of Asia capital markets Crawford Brickley from Singapore to Hong Kong, as well as bringing in Julian Perlmutter, a senior consultant from the London office, in late February. In Singapore, the firm has promoted senior associate Johannes Juette to senior consultant.
Clayton Utz denies U-turn on Asia policy Australian firm Clayton Utz’s decision to open a Hong Kong office is not a departure from its traditional relationships-based approach to international operations, says CEP David Fagan. The decision will see Clayton Utz arrive in Hong Kong some 20 years after rival Mallesons first entered that market. “This move doesn’t David Fagan Clayton Utz derogate from what we’ve done with Lex Mundi or PRAC - it’s a logical extension of the construction and major projects work we’ve done in Asia,” said Fagan. “We remain committed to our relationships with local Hong Kong firms. In fact, we expect there will be more opportunities to work with local firms in the region as the result of our having a presence on the ground in Hong Kong.” The two-partner office will be led by Glenn Haley, who most recently headed Deacons’ Hong Kong construction practice, and Clayton Utz partner Colin Dodd, who has been based in Hong Kong for a number of years. The office will focus on construction and major projects and international dispute resolution, although expansion into other areas is not being ruled out.
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SINGAPORE >>
Harry Elias split T
us report Lovells Chicago office to close curtains Lovells recently announced plans to close its seven-partner Chicago office, due to its underperformance for a number of years. Although the plan is still subject to partnership approval it is expected that the office will close at the end of October, six months after the firm’s merger with Hogan & Hartson goes ahead. However, firm officials stress that the closure has been under review for some time and is not related to the merger. Lovells is currently in discussions to see whether there is scope to transfer the Chicago partners to another office, although this is not guaranteed. Meanwhile, Lovells US managing partner Marc Gottridge has vowed to continue building the firm’s New York presence, following its May merger with Hogan & Hartson. Bryan Cave look for UK tie-up St Louis firm Bryan Cave has been active on the merger front for a number of years – an attempted large-scale tie-up with Squire Sanders failed but a useful one with Atlanta-based 220-lawyer firm
Powell Goldstein went ahead last year. Now, however, it has installed one of the key players behind the Powell move – litigation partner Rodney Page – as head of its London office, with a specific directive to find a UK partner firm. Bryan Cave’s London office had a tough 2009 and its UK and European growth ambitions needed the extra impetus. The most likely merger candidate will be a mid-rank firm with similar PEP. Mayer Brown slashes staff Mayer Brown recently cut 28 associates and counsel and 47 members of staff from its US offices in the firm’s third round of layoffs in 18 months. The firm cited that ‘overall demand for legal services has not recovered fully’ and ‘voluntary lawyer departures have been significantly lower than our normal levels’, as reasons. Mayer Brown’s recently released financial results revealed that revenues fell by almost 14% in 2009, along with a decline in total revenue from US$1.12bn to US$1.29bn. The firm’s London office also saw a double-digit decline in revenues, with turnover falling by 16% to £93.8m from £111.6m in 2008.
ROUNDUP • Linklaters recently appointed Jean-Philippe Brisson as head of its US environment and climate change practice in New York. He joins a four-partner team in the firm’s practice • US firm Akin Gump Strauss Hauer & Feld has poached Hogan & Hartson’s Geneva office to launch its own Swiss practice this month. The team will be led by Charles Adams, Hogan’s former Geneva office managing partner and co director of the firm’s international litigation and arbitration practice, and will continue to focus on international arbitration, international civil litigation, corporate and commercial law and giving tax advice to corporates and high-net-worth individuals • Mayer Brown has launched a competition and distribution practice in Paris with the hire of partner Nathalie Jalabert-Doury from Carreras Barsikian Robertson & Associés, who joins the office as the new practice head • Milbank Tweed recently hired Shearman & Sterling’s Latin American practice head Andrew Jánszky, to lead its new São Paulo office. Jánszky – previously Shearman’s Latin American head and managing partner in São Paulo – will arrive at Milbank with associate Tobias Stirnberg, who joins as partner • Hogan & Hartson and Lovells may want to re-think their name post-merger, after it emerged that the Hogan Lovells name has already been trademarked by a road haulage company in Nebraska. If the name is not changed it could develop into a costly litigation battle
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he managing partner and six lawyers who left Singapore firm Harry Elias Partnership in February have set up a new firm with the help of clients and other law firms. Inca Law, an acronym of the founding partners’ surnames – Harry Elias’ former managing partner Latiff Ibrahim, head of criminal litigation Shashi Nathan, head of insurance Lynette Chew, and constructions partner Kelvin Aw – opened recently with the backing of the local legal industry and the lawyers’ clients, said Ibrahim. After news broke of their departure from Harry Elias, the lawyers decided to set up their own practice despite receiving offers to join other firms. “A few established Singapore and foreign law firms kindly offered us to join them or enter into some working arrangements, but when we explained our desire to run our own boutique practice they were very understanding and supportive, and left the door open for future collaborations,” added Nathan. Some clients even helped find office space. “Initially we worked from home and our clients’ offices, then one of our clients offered a partially fittedout office at the heart of the city in Raffles Place,” said Aw. “Another client assisted us to fit out the office. For two months we were running a law firm with all kinds of people – ID designers, contractors, IT engineers, telephone technicians – all around us.” It is understood the lawyers brought SINGAPORE >>
Clifford Chance swaps
C
lifford Chance’s infrastructure partner Geraint Hughes will take over management of the Singapore office from current head Phillip Rapp, in a sign of where Geraint Hughes the firm will focus its Clifford Chance regional business. Hughes, who heads the firm’s Asian Asian Legal Business ISSUE 10.5
NEWS >>
reflects new market pressures
many of their old clients from Harry Elias with them. As ALB reported in February, the lawyers’ departures came after disagreement on Ibrahim’s leadership style in promoting new partners and seeking merger and alliance partners to grow in order to compete with foreign law firms arriving with Qualifying Foreign Law Practice (QFLP) licences in 2009. “It is the medium-size firms who are going to be affected the most by the QFLPs, especially those who are not willing to deal with the issues headon. For us, all foreign firms present opportunities for collaborations on a case-to-case basis. That desire – to establish close working relationships with well-reputed local law firms in some ASEAN cities – remains
strong ...” said R Ravindran, a former Member of Parliament who joined the firm as a consultant from Harry Elias. Perhaps the greatest challenge – and the most amusing – was coming up with a unique name to separate the firm from the competition: “We didn’t want future directors to feel that they are not part of the firm; English names were just not us, and there were too many local law firms with Latin names (one that came up was shared by a cleaning company, so that was quickly rejected),” explained Ibrahim. “Then in the list of names that we all had proposed was “INCA” – the initials of the four founding directors. We tested it with a few key clients and close friends and after the initial friendly ribbing about ancient civilisations, Machu Picchu and so on, they all loved it. The rest is history.” ALB
Singapore managers to focus on infrastructure work energy and infrastructure group, will relocate from his current post in Hong Kong in May to take over operations in Singapore. Rapp will remain in Singapore heading the Southeast Asia corporate practice. He recently oversaw the firm’s changeover to a local lawqualified practice following the QFLP licence granted by the Singapore government last year. www.legalbusinessonline.com
The shift from a corporate to an infrastructure specialist indicates where Clifford Chance’s longer-term investments will be made in the region. The firm’s head of Asia, Peter Charlton, said the changeover is part of the “next phase of development” in the Southeast Asian region for the Magic Circle firm and that energy and infrastructure would be a particular focus. ALB
news in brief >> Indian firm joins banks in office complex Indian firm Majmudar & Co has relocated its Mumbai office to greener pastures in the Bandra Kurla Complex, in what the firm hopes will be greater access to the local banking & financial industry. Moving to the BKC will make it the first major national law firm there. In the last couple of years, BKC has become a financial centre, and a number of multinational and Indian banks are now headquartered there. Majmudar’s local litigation and dispute resolution team will be based near the Mumbai High Court in Flora Fountain; the firm also has an office in Bangalore.
Harneys gains best friend’s Cyprus office Offshore firm Harneys has gained a presence in Cyprus after merging the office of its Cypriot ‘best friend’ firm Aristodemou Liozides Yiolitis (ALY) into its network. The firm entered into the ‘best friends’ agreement with ALY in 2008 and now, having formalised the merger, has gained its fifth international office. The firms hope to target Russian and Indian offshore businesses through the BVI, utilising the favourable tax treaties Cyprus has formed with emerging economies. “Cyprus is a preferred jurisdiction for Russia investment… we believe Cyprus will be relevant to a great many of our clients, including those in the Far East, India and Europe,” said Harneys partner Peter Tarn. Former Maples partners to head up offshore boutique in Hong Kong Cayman Islands boutique firm, Thorp Alberga, has opened in Hong Kong where it will be led by former Maples and Calder partners Richard Thorp and Harriet Unger. The firm’s move into Hong Kong is opportunely timed. The SAR relaxed listing rules late last year paving the way for Jersey and BVI incorporated companies to list on the HKEX, which is likely to bring a corresponding increase in workload for offshore firms in Hong Kong. Also, recent consolidation activity among offshore firms has made the offshore legal market hierarchy as fluid as ever. Nevertheless, Hong Kong is among the world’s most competitive offshore legal markets, being an office location of all of the major offshore players (Appleby, Conyers, Harneys, Maples and Walkers).
17
NEWS >>
Update >>
CHINA >>
Intellectual Property Outsourcing of patent search and examination
O
ne of the lesser known facts about the Singapore patent system is that the search and examination of Singapore patent applications is not conducted by the Intellectual Property Office of Singapore (IPOS). Instead, this important task has been contracted out to foreign Patent Offices, namely the Australian, Austrian, Danish and Hungarian Patent Offices. Unfortunately, applicants cannot select which Patent Office they wish to conduct the search and examination at the time of making the request. Instead, cases are assigned by IPOS to one of these Patent Offices and the applicant simply receives a search and examination report from one of these Patent Offices and is required to deal with them. How does this peculiarity affect patent applicants who choose to request search and examination in Singapore? In theory, when the various Patent Offices undertake to conduct this search and examination, they agree to do so under Singapore patent laws. However, in practice, the question arises as to whether it is possible for these Patent Offices to be able to effectively apply Singapore law to these patent applications. In particular, under Singapore patent law, there is no exclusion for patentable subject matter such as computer software and business methods. In some of the Patent Offices which have been tasked with conducting the search and examination, such applications would not be patentable under their law. It is not clear therefore whether these Patent Offices would be able to adequately examine the patent applications in relation to such subject-matter. In the writer’s opinion, this would be challenging, though of course not impossible. Interestingly, in the case of post-grant requests for search and examination under section 38A of the Singapore Patents Act, patent owners do have a choice of which Patent Office they wish to conduct the search and examination and the fees for the different offices varies to conduct the search and examination. In such cases, the patentee has the opportunity to consider which Patent Offices would be most appropriate to conduct the search and examination for the technology, Applicants should therefore bear this in mind when requesting search and examination in Singapore for patent applications relating to subject-matter that is not patentable in Europe. Since the applicant cannot choose the Patent Office, it may be preferable in such instances to avoid the search and examination process in Singapore and rely on the grant of a corresponding patent, an acceptable alternative under Singapore patent law.
Sheena Jacob, head of IP & technology group ATMD Bird & Bird LLP Tel: 65 6428 9801 Email: sheena.jacob@twobirds.com ATMD Bird & Bird LLP is a Singapore law practice registered as a limited liability partnership in Singapore. The firm is associated with Bird & Bird, an international legal practice. It is solely a Singapore law practice and is not an affiliate, branch or subsidiary of Bird & Bird or Bird & Bird LLP.
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Sheena Jacob
Legal work abounds as B
oth CNOOC’s in-house legal department headed and the company’s external counsels have had a busy month working on headline transactions. A week after the company announced its plan to take up a 50% stake in Argentina’s Bridas for US$3.1bn, it entered into a 20-year
INDIA >>
India and sport big business T he Queen’s Baton made its way to Australian firm Middletons’ Melbourne office yesterday as part of a networking event which presented an opportunity for the firm to not only host the baton before it makes its way to Delhi later this year but also promote and develop crossborder business through a common love of sport. India group head Cameron Abbott said his firm understands that sport is big business in both countries. “Both Australians and Indians love their sport including cricket and the Commonwealth Games and many a business deal has no doubt been struck while watching their beloved side win or lose.” Abbott is certainly on the money. For both Australian and Indian business, India’s growing, affluent middle class will be a key part of leveraging brand power through sport. The brand value of the Indian Premier League has been estimated to be around US$4bn. “We encourage our local clients to look to India when investing or off-shoring work because of the similarities of our laws and that fact that India recognises copyright and
Asian Legal Business ISSUE 10.5
NEWS >>
Update >>
CNOOC spreads wings LNG purchase agreement with Australia’s BG Group – one of Australia’s largest LNG contracts. “This project is unique. It is the first coal seam gas to LNG deal in the world and also represents one of the largest volumes of LNG sold in one contract in Australia...The timeline for completing the numerous project documents has been a challenging one,” said Anna Howell, the head of energy Asia at Herbert Smith, who advised on the deal. Herbert Smith was also one of the five international law firms representing CNOOC in its 2005 bid to acquire US’s Unocal for US$18.4bn. The offer was eventually withdrawn due to political pressure in the US. In addition, Herbert Smith is reportedly acting for CNOOC in its latest endeavour to acquire a third of Tullow Oil’s assets in Uganda. In terms of PRC legal advice and deal executions, CNOOC receives strong support from its renowned in-house legal team led by general counsel Zhao Liguo. “If foreign law requires it, we would prefer to obtain legal opinions from international firms with careful supervision and review them in-house. To some extent, the role of such international firms is supposed to be expressly putting forward all reminders of potential legal risks under underlying foreign law, on the basis of good understanding of and communication with their clients,” said Zhao.”When selecting external counsels, we will look through and pay more attention to the personal achievements/credentials of those members to render legal services to us but not the overall experiences/credentials of those candidate law firms. Frankly, we would certainly hope to get a reasonable quotation and hourly rate as well,” he added. ALB
for law firm
IT column
TM
Preserve in Place vs. Collect to Preserve Can you explain the distinction between the preserve-in-place and collect-to-preserve approaches, including how this might cause you to recommend one type of eDiscovery solution over another? – Senior Litigation Support Specialist, Fortune 500 Biotechnology Company
“P
reserve in place” refers to preservation of archived data formats, such as back-up tapes, email archives and scanned document repositories—items that are not altered in the normal course of business. However, recently the term has been expanded to refer to “locking down” files currently in use wherever they are found, including files on custodians’ computers. The risk and inconvenience of using “preserve in place” for documents currently in use by the custodian limits its usability for eDiscovery preservation. “Preserve in place” does not actually collect files in a forensically defensible manner. Once a document is “locked down,” the custodian must make a copy of the file to edit and use for business purposes. If the file is on a computer of a custodian who is also an “administrator” on that computer, it may be possible to override the inplace preservation. In addition, leaving a file in place on a computer in the possession of a custodian exposes the data to greater risk of accidental or purposeful destruction. Finally, the metadata and unique hash value of the file may be altered when “locked down,” rendering proof of chain of custody and duplicate identification difficult or impossible. “Collect to preserve” is the method that data forensics and eDiscovery professionals use when preserving potentially relevant evidence. This method uses digital investigation or eDiscovery software to create a copy (which is an original under the Federal Rules of Evidence) of the target data (often filtered by keywords, dates, or other parameters). The software verifies the accuracy of that copy by generating a Hash or CRC value, then preserves the copy, along with its exact state and metadata, within a court approved file format. By quickly preserving data out of the stream of use in the regular course of business, you can minimize business disruption, the burden of “preserve in place” data management and the risk of spoliation. If you are collecting data for submission in court or for proof of compliance to regulators, use an eDiscovery solution that uses the “Collect to preserve” method.
Written by Michael Rhoden
trade marks – not a luxury available in many countries with a low-cost manufacturing base,” said Abbott, who also reports advising a number of Australian companies, mostly in the logistics industry, going to India ahead of the Commonwealth Games. ALB www.legalbusinessonline.com
For more information, please contact: Carl Kimball, General Manager, Asia Pacific Guidance Software, Inc Phone: +65 6248 4527 Email: apac.sales@guidancesoftware.com
Carl Kimball
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NEWS >>
news in brief >> MSI looking for more Asian firms International legal network MSI Global Alliance has admitted Carag De Mesa & Zaballero (CDMZ) as its exclusive member for the Philippines. CDMZ was established in 1996 and has since grown into a five-partner, 25-staff firm. “With many clients now requiring advice in jurisdictions throughout Asia and in Europe, the Middle East and North America, it is important that we establish stronger, more formal links to law firms around the world,” said name partner Priscilla Zaballero. MSI’s chief executive James Mendelssohn said that the appointment of CDMZ is a sign of things to come for MSI in the region. He said that further expansion of the network’s operations in Southeast and North Asia is also imminent. “Carag De Mesa & Zaballero’s [appointment] as MSI’s sole law member in the Philippines is another big step forward for MSI in the East Asia region… We are now aiming to extend MSI’s coverage to Cambodia, Indonesia, Myanmar, South Korea and Taiwan, and invite strong, local firms to apply,” he said.
MIDDLE EAST >>
Firms close rare PE deal in tough G
lighting company, General Lighting, which was advised by Dewey. The other firms advised the banks. The transaction was the first Saudi acquisition for the Carlyle Group, which has remained active despite the slowdown in the global PE market. In Asia, the company has so far made 118 investments and has just closed a
ibson Dunn & Crutcher, Dewey & LeBoeuf, Clifford Chance and Hourani & Associates have closed a rare PE transaction for The Carlyle Group amidst a tough PE market in the Middle East. Gibson Dunn and Hourani & Associates advised Carlyle on its acquisition of a 30% stake in Saudi ►► PE Deal Volume by Region 705
278
967
629
518
1,289
1,025
614
1,292 1,289
Americas
Asia-Pacific
EMEA
Source: Dealogic This chart captures transactions where the buyer is a PE firm acquiring a target based in Americas, Asia-Pacific or EMEA. Deal volume includes deals where values are disclosed and non-disclosed.
MIDDLE EAST >>
Kuwaiti firm ASAR rebrands Kuwaiti firm Al-Sarraf & Al-Ruwayeh has rebranded its name to ASAR – Al Ruwayeh & Partners, a year after the split between the firm’s two local Kuwaiti partners. In 2009 founding partner Hameed Al Sarraf exited the firm to set up his own separate Kuwaiti practice. It continued operating under the same name – Al Sarraf & Al Ruwayeh – while its international division in Bahrain continued independently under the ASAR Bahrain name. The decision to rebrand came after Hameed Al Sarraf’s practice announced its intention to set up an international division of its own. “Hameed Al Sarraf is now pursuing a separate and new international department with his local law firm Abdul Hameed Al Sarraf & Partners,” said Sam Habbas, the head of the firm’s international operations, adding that the rebranding will not affect the firm’s international operations – all the partners, associates and staff will remain at the firm bar Hameed Al Sarraf.
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Latham & Watkins gains White & Case’s Riyadh office
L
atham & Watkins has confirmed a tie-up with former White & Case Saudi sponsor Mohammed Al-Sheikh that has led to a new Lathams office in Riyadh. Al-Sheikh’s departure from White & Case was among four other senior-level defections from the firm’s Middle East operations in February, all to Latham & Watkins. At the time, Lathams declined to verify the appointments but has since confirmed that Al-Sheikh has aligned with the firm, taking with him projects partner Christopher Langdon and banking & finance associate Harjaskaran Rai. They will be accompanied by New York-based banking & project finance associate Salman Al Sudairi, a former White & Case lawyer, who is transferring to Riyadh. The lawyers are operating in the same Al Tatweer Towers office as during the White & Case association.
For Latham, it will mean a fourth branch in the Middle East, along with the Doha, Abu Dhabi and Dubai offices that were launched in 2008. Al Sheikh’s appointment will also give the firm a stronger foothold in the local Islamic finance sector. It’s not the first time Lathams has built up a new office through lateral hires – in 2009 it confirmed the appointment of seven corporate partners defecting from Allen & Overy Hong Kong. For some international firms in Saudi Arabia, cementing a sponsor has been a shaky business in the past – between 2008 and 2009, DLA Piper lost two Saudi sponsors, Abdul Aziz Al Bosaily and Abdulaziz Al Assaf, before linking up with Alaa Naji. Although White & Case still has a Riyadh presence on its website, no local lawyers are listed. It hasn’t confirmed the search for a new sponsor. ALB Asian Legal Business ISSUE 10.5
NEWS >>
Gulf market new US$2.55bn fund focused on acquisitions in the region, named Carlyle Asia Partners III. It is also increasing its focus on the Middle East market, having raised US$500m last year for acquisitions in the region. Dubai-based partner Paul Harter, who led Gibson’s team on the transaction, is not, however, confident of an immediate pick-up in regional PE activity. “The trend line coming out of the worst of the financial crisis is good, but not steep. Six to 12 more difficult months would not surprise me,” he added. The market has been plagued by lack of funding for deals. “Sourcing deals remains difficult; it’s been a very difficult market for financial sponsors in the Middle East,” said Harter. “Low investor confidence and tight credit markets means that only the best and strongest have been able to get deals off the ground.” Harter says that more deals will unsurprisingly depend on the security of the debtor, and those like Carlyle (which his firm has represented on several deals in Europe and the US) may do well. “Carlyle and a small number of the more prestigious regional players are well positioned to do more deals sooner than others,” he said. “Lenders want to lend on the security of reputation, more than on the security of assets or cash flows. Carlyle is one of the only international players with a regional buyout fund and if they say they will do more deals this year, I believe them.” ALB
MIDDLE EAST >>
US firm launches in Middle East with dual tie-ups
U
S firm Crowell & Moring has made its Middle East debut by forming associations with Saudi firm Al Enizy & associates and Cairo-based firm Hegazy & Associates. ►► Crowell & Moring – Fast facts
• 11 offices – Washington, New York, Los Angeles, San Francisco, Orange County, Anchorage, London, Brussels, Cairo, Riyadh, Jeddah • Founded in 1979 by 53 lawyers, mostly from Jones Day • Currently has approximately 500 lawyers
The firm has opened an affiliated Cairo office under the sponsorship of Walid Hegazy, an Islamic finance lawyer who headed the Islamic finance practice at Freshfields in 2007. In Saudi Arabia, it has tied up with local lawyer Fahd Al Enizy, whose practice focuses on Islamic finance and corporate work. Al Enizy has another office in Jeddah. Crowell is focusing its new Middle East practice on on corporate and M&A matters for US clients doing business in the MENA region. It said the decision to go to Egypt was made in response to the growing amount of energy, telecoms and construction work there. ALB www.legalbusinessonline.com
Update >>
Islamic Banking in Malaysia Recent Amendments to Central Bank of Malaysia Act 2009
T
he recent amendments to the Central Bank of Malaysia Act 2009 (“CBA”) stems from the High Court judgment dated July 18 2008 in Arab Malaysian Finance Berhad v Taman Ihsan Jaya & Others (2008), where it was ruled that the application of the Bai Bithaman Ajil (“BBA”) contracts before the court was contrary to the Islamic Banking Act 1983 (“IBA”), noting that the sale element in the BBA is “not a bona fide sale”. This prompted Bank Negara Malaysia, (“BNM”) to make plans to compel the High Court to refer to the Shariah Advisory Council (“SAC”) of BNM when presiding over Islamic banking and finance-related cases, unlike presently, where High Court judges are neither required to consult the Syariah experts nor heed their advice, thus bypassing the SAC in relation to such matters. The SAC is an independent advisory body established under section 51 of the CBA and is the authoritative body for the ascertainment of Syariah law in Islamic banking, finance and takaful business. The CBA provides that the SAC can be referenced by the courts in proceedings relating to Syariah matters in Islamic banking and financial business disputes. The council, which comprises experts in the disciplines of Syariah, banking, finance, economics and law, are appointed by the Yang di-Pertuan Agong under advice of the Minister of Finance after consultation with BNM. The recent amendments to the CBA came into force late 2009 and provided more bite to the SAC rulings. Apart from establishing the SAC, the amendments include, amongst others, Section 56 and 57 of CBA which now makes it compulsory for any court or arbitrator in proceedings relating to Islamic financial business to take into consideration any published rulings of the Syariah or to refer such question to the SAC for its ruling and the effect of the SAC rulings shall be binding on the court and arbitrator. The amendments to CBA will provide certainty in relation to disputes and court proceedings over issues concerning the application of Syariah principles in Islamic finance transactions. Similar amendments were also made to the Capital Markets and Services Act 2007 which came into force on 1 April 2010 whereby the SAC has the final say on Islamic capital market issues. It is acknowledged that the members of the SAC which comprise experienced and respected Islamic scholars in their respective fields would provide greater certainty than judges who may not have the relevant training or experience in Islamic finance. This is another landmark step for Malaysia towards establishing confidence in its comprehensive regulatory and legal framework in Islamic banking and finance.
Khairul Ismail, Partner E-mail: khairul@naqiz.com Naqiz & Partners PL01, Plaza Level, No. 45, Block A, Medan Setia 1, Plaza Damansara, Damansara Heights, 50490 Kuala Lumpur, Malaysia Tel: + (603) 2095 1188 | Fax: + (603) 2095 1186 www.naqiz.com
Khairul Ismail
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NEWS >>
Update >>
nz/uae >>
Technology Transfer In Malaysia An Overview in Malaysia
T
he significant investments made by both the public and private sectors in the technology sectors globally have created a fertile ground for licensing and technology transfer. Many organisations in Malaysia enter into technology transfer arrangements. Technology transfer arrangements comprise licences over specific processes, formulas or technology, know-how and expertise in infrastructure construction, manufacturing and provision of various forms of technical assistance. It is useful to note that companies involved in manufacturing projects licensed under the Industrial Coordination Act 1975 must obtain the prior written approval of the Ministry of International Trade and Industry before entering into any technology transfer arrangement with foreign parties. This serves the objective of ensuring that unfair or unjustifiable restrictions or terms prejudicial to national interests are not imposed on the local company by the foreign technology owner. In Malaysia and most other countries, technology transfer is usually implemented at two levels, at the government level between the states and at the private level between corporations. Technology transfer occurs in the form of foreign direct investment; licensing and joint ventures involving the importation of equipment and materials, skilled manpower and know-how; technical assistance and know-how agreements; turnkey contracts; intellectual property license agreements and management consultancy agreements. Ownership rights over technology are institutionalized via certain safeguards such as patent registration. At this moment, advanced countries such as Japan and Korean with well-established Research and Development (R&D) facilities dominate the sphere of patents and have registered many of their patents in Malaysia. Technology transfer is the consequence of a negotiation process and hence, the most crucial element is the ability to negotiate in order to get the best terms, including the assurance that the technology will actually be transferred. It is a policy in all government procurement contracts executed in Malaysia involving technology that there must be some element of transfer of technology from the technology owner.
High hopes as ribbon is cut Dhabi dabble H ad he been back in Wellington, New Zealand’s trade minister Tim Groser would have still been a few hours away from having to get up to a wet, chilly morning. As it was, he was eight time zones away in Abu Dhabi enjoying a dry, balmy evening. The occasion? The official opening of Kensington Swan’s pioneering new Middle-East office. The fact that it was the minister himself wielding the ribbon-cutting scissors perhaps gives credence to the claims of
australia/japan >>
Aussie firms in Japan: a viable
A
ustralian top-tier firm Blake Dawson says its precedent-setting move in being the first Australian firm in Japan may help other Aussie firms launch there too. Six months after announcing its plans, the firm coordinated with the Japanese Ministry of Justice to obtain regulatory approvals and has secured its licence to operate as a foreign Natsuko Ogawa Blake Dawson firm advising on Australian law. “It was a fairly lengthy process in confirming that our office would satisfy all the legal requirements of the ministry,” said resident partner Natsuko Ogawa. “It was probably made more difficult in that the Australian system has not had to come into their scrutiny in the past. That in some ways may benefit other firms following in our footsteps if they choose to, but it’s hard to say.”
Jeffrey Tan Siew Yang, Partner Intellectual Property / Technology Practice Group Azmi & Associates 14th Floor, Menara Keck Seng, 203 Jalan Bukit Bintang, 55100 Kuala Lumpur, Malaysia. Phone: +603- 2118 5000 ext. 5009 Fax: +603- 2118 5111 E-mail: jeffreytan@azmilaw.com
22
Jefrey Tan Siew Yang
Asian Legal Business ISSUE 10.5
NEWS >>
on Kensington Swan’s Abu Kensington Swan’s chairman, Clayton Kimpton, that the new office was important “not just for Kensington Swan but for the New Zealand professional services sector as a whole”. As the choice of Abu Dhabi – the seat of the UAE national government – over the more commonly selected Dubai suggests, the team is targeting government work as a significant source of revenue, along with private clients and outbound investment into Australasia. ALB
proposition? Ogawa is accompanied by three other lawyers stationed at the new office, with another to join later this year. Although the firm has a stable list of Japanese clients such as Kirin and Mitsui – there is scepticism that the market for an Australian firm in Japan may not be sustainable. “The market solely for Australian law advice is far too thin in Tokyo to merit a major investment there by the large Australian law firms, who already compete effectively for this business among themselves in the major Australian cities,” said White & Case Tokyo partner Robert Grondine. “Just because there has been a surge of investment transactions from Japan to Australia in the past 12-24 months, which already illustrates my point that all of that work has been accomplished and serviced by them without having offices in Tokyo, does not justify the very large investment to open offices and staff people to Tokyo for the ongoing future.” ALB
Update >>
Employment Encouraging the re-employment of older employees in Singapore
A
s part of a continued effort to address the issue of Singapore’s rapidly ageing population, the Ministry of Manpower released an updated set of Tripartite Guidelines for Reemployment of Older Employees (“Guidelines”) on 11 March 2010. The Guidelines supersede an earlier set of guidelines introduced in April 2008, and were finalised after one month of public consultation. The Guidelines seek to assist employers put in place reemployment policies for workers up to the age of 65, ahead of re-employment legislation which is set to be enacted by 1 January 2012, which will enable more people to continue working beyond the current statutory retirement age of 62. Employers are encouraged to adopt the following reemployment practices:
Plan and Prepare Employees for Retirement
Employers should aim to re-employ the majority of their older workers. Medical fitness to continue working and satisfactory performance are relevant key criteria when offering re-employment contracts to employees. Employers should engage employees on re-employment issues as early as possible. Ideally, this should be done not less than 6 months prior to re-employment. Flexible job arrangements should be provided for reemployed employees. Employers have the responsibility of informing, preparing and providing training for employees whose job scope will be modified or changed entirely.
Adopt Flexible Re-Employment Contracts
The offer of re-employment should be made at least 3 months before the employee is due for retirement. Employers should obtain written confirmation from eligible employees who do not wish to be re-employed. Benefits can focus on performance-based criteria instead of adopting a seniority-based system.
Assist eligible employees whom employers are unable to employ
As a last resort, employers should offer a one-off Employment Assistance Payment (“EAP”) if a suitable job is unavailable. The Guidelines suggest principles to guide the amount of EAP payable, for example, a minimum EAP of S$4,500 with a cap at S$10,000; and EAP decreasing as the employee reaches the age of 65.
Conclusion
The general theme of the Guidelines focuses on assisting older employees to remain employable notwithstanding the statutory retirement age. Provided that an older employee is willing and able to continue working, employers are encouraged to adopt their best efforts to retain him in the workforce, with appropriate modifications to job scope and/or benefits. Implementing such internal company policies as soon as practicable will provide for a smoother transition in due course when the re-employment legislation is enacted. Claire Gomez, Associate ATMD Bird & Bird LLP 2 Shenton Way, #18-01 SGX Centre 1, Singapore 068804 Direct: +65 6428 9415 Tel: +65 6534 5266 | Fax: +65 6223 8762 Email: claire.gomez@twobirds.com Web: www.twobirds.com ATMD Bird & Bird LLP is a Singapore law practice registered as a limited liability partnership in Singapore. The firm is associated with Bird & Bird, an international legal practice. It is solely a Singapore law practice and is not an affiliate, branch or subsidiary of Bird & Bird or Bird & Bird LLP.
www.legalbusinessonline.com
Claire Gomez
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NEWS >>
appointments ►► LATERAL HIRES Name
Leaving
Going to
Practice
Location
Alex Lloyd Various Assim Abbas Amitabh Sharma Shishir Mehta Takashi Shibuya Emmanuel Hadjidakis
Clifford Chance Orrick Legal Spectrums J Sagar Associates White & Case Ministry of justice Allen & Overy
Corporate finance Litigation Telco & media Infrastructure & projects Banking & corporate Corporate Banking & finance
Hong Kong Hong Kong New Delhi Mumbai Mumbai Tokyo Singapore
Sun Jin Hwang Tae-Wook Shin
Warburg Pincus Korea Customs Service
Sidley Austin Winston & Strawn Khaitan & Co Khaitan & Co Khaitan & Co Nishimura & Asahi Baker & McKenzie. Wong & Leow Kim & Chang Kim & Chang
Seoul Seoul
Bryan Ghows Alison Lindsay
Ghows Clifford Chance Hong Kong Paul Hastings
TSMP Minter Ellison Rudd Watts Orrick
M&A Customs, international trade IP/IT TMT
Singapore Auckland
PE
Hong Kong
Maurice Hoo
►► Relocations Firm
Lawyer*
From
To
Clifford Chance Latham & Watkins White & Case
Various Salman Al Sudairi Baldwin Cheng
London, Singapore New York Hong Kong
Riyadh. Hong Kong Riyadh Beijing
*Foreign qualified
►► Promotions Name
Firm
Promotion
Practice
Location
Ian McGrath Victoria Simonova Johannes Juette Min Yee Ng Various
Denton Wilde Sapte Denton Wilde Sapte Clifford Chance Latham & Watkins Lovells
Partner Partner Senior consultant Partner Partner
Gavin Margetson
Herbert Smith
Partner
Oman Kazakhstan Singapore Singapore Shanghai, Hong Kong, Dubai Tokyo
Lewis McDonald May Tai Paul Scarr Don Stokes William Coleman Marc Fèvre Robert Lonergan Various Various Various
Herbert Smith Herbert Smith Herbert Smith Freshfields Freshfields Freshfields Freshfields Yulchon Yulchon Yulchon
Partner Partner Partner Finance Finance Finance Finance Partner Partner Partner
energy & infrastructure energy & infrastructure Capital markets Capital markets IPMT, corporate, BRI, litigation, banking General dispute resolution Energy, Arbitration Corporate Counsel Counsel Counsel Counsel Corporate & finance Tax Dispute resolution
Yulchon
Yulchon promotes largest partner class Korea’s Yulchon has made up the largest number of associates to partner since the firm launched in 1997. The 16 new additions raise the firm’s partner total to 68. Most of the partners are from the corporate & finance practice – four locally qualified and three senior foreign counsel. From the tax practice, four new partners have been made up while the dispute resolution practice has added five. Yulchon co-founder Sai Ree Yun said that the promotions are part of the firm’s strategy to build organically rather than pursue mergers. “Many Korean law firms pursue size first, merging with other firms to expand their services,” said Yun. “But we take the opposite approach of … internal talent development [combined with] strategic lateral hiring.”
24
Khaitan & Co
Various
Clifford Chance
Singapore Shanghai Abu Dhabi Tokyo Dubai Abu Dhabi Hong Kong Seoul Seoul Seoul
Sidley Austin
Sidley gains corporate finance partner from Clifford Chance Sidley Austin will welcome corporate finance lawyer Alex Lloyd to its Hong Kong office this month, following his move from Clifford Chance’s capital markets practice in Hong Kong. Lloyd said he was attracted to his new Alex Lloyd firm having worked with Sidley lawyers on past transactions. Commenting on the appointment, Sidley’s Asia-Pacific regional manager Thomas Albrecht said “As the Asian region continues its unprecedented economic growth, capital raising will be necessary to fuel that growth and we anticipate that the high yield debt and equity capital markets will continue to be very active.”
Khaitan & Co appoints three new partners; gains boutique firm India’s Khaitan & Co has gained three new partners from rival firms. Foremost among them is telecommunications specialist Assim Abbas, who has been appointed partner in charge of Khaitan & Co’s telco & media practice based in New Delhi. Abbas has agreed to merge his own boutique law Assim Abbas practice, Legal Spectrums, which he set up in 2008 after leaving his post as vice president of legal affairs at Indian telco giant Bharti Airtel. Arriving from rival firm J Sagar Associates is infrastructure specialist Amitabh Sharma, joining Khaitan & Co’s Amitabh Sharma infrastructure & projects practice in Mumbai. Sharma’s addition will be the second hire from J Sagar Associates for the firm in less than six months, following the appointment of competition partner Manas Kumar Chaudhuri in December. Shishir Meht Khaitan’s Mumbai office will also see the addition of former White & Case associate Shishir Mehta. His arrival in the banking & corporate practice is intended to build its capability in cross-border transactions – Mehta is admitted to practice in New York, Gujarat and the UK.
Winston & Strawn
Orrick
Orrick lawyers defect to Winston & Strawn Hong Kong Four litigation lawyers from Orrick’s Hong Kong office have moved to Winston & Strawn, beefing up the latter’s commercial litigation practice. Partner Adrian Yip – who formed Orrick’s 2005 launch team in Hong Kong – has taken fellow litigation associates Philip Kwok, Cliff Mok and Genevieve Ku along with him to Winston & Strawn’s Hong Kong office. Winston & Strawn launched in Hong Kong as recently as 2008 through an association with local firm Luk & Co. With the additions, the firm hopes to boosts its litigation expertise in securities and IP disputes and white-collar crime. Its total number of lawyers in Hong Kong will grow to 12
Ministry of Justice
Nishimura & Asahi
Japanese MOJ official joins Big Four firm Former Japanese Ministry of Justice (MoJ) official Takashi Shibuya has joined local Big Four firm Nishimura & Asahi. Shibuya specialises in corporate and criminal law Asian Legal Business ISSUE 10.5
FINANCIAL INSTITUTIONS • ENERGY • INFRASTRUCTURE AND COMMODITIES • TRANSPORT • TECHNOLOGY
700 lawyers, 13 offices, one team Norton Rose Group in Asia Pacific
Norton Rose Group has always served the needs of clients with interests in the Asia Pacific region. But now that Norton Rose Australia has joined forces with us, we’ll be even better placed. The move will create a major legal practice across the region. 700 lawyers in 13 offices to be precise. Our clients right around the world will benefit from a new wealth of resources, knowledge and contacts. www.nortonrose.com/asiapacific
NEWS >>
having spent two decades at the Japanese public prosecutor’s office and the MoJ. As counsel at Nishimura he will work across a number of practices, with a focus on corporate crisis management.
Saudi Arabia
London
Clifford Chance to strengthen ties with Saudi ally Clifford Chance has transferred the co-head of its London capital markets practice to Riyadh, to boost ties with its Saudi ally, Al-Jadaan & Partners. Tim Plews will be relocated permanently to the Saudi firm in October where he will join fellow Clifford Chance partner Mohamed Hamra-Krouha, who has been on secondment since 2008 at Al-Jadaan. Al-Jadaan’s managing partner welcomed the addition, while Clifford Chance said Plew has strong client relationships in the Gulf and his addition will strengthen ties with Al-Jadaan. The firm has also announced that Hong Kong infrastructure partner Geraint Hughes will be the new managing partner of its Singapore office.
Lovells
Lovells makes up new partners ahead of merger Lovells has made up the largest number of its lawyers to partner since 2007, just before it rebrands and merges with US firm Hogan & Hartson in May. Twenty-one lawyers across its international offices have been made up, six of them from Asia and the Middle East. In 2007 the firm made up 31 lawyers to partner. The firm has four new partners in Hong Kong, one in Shanghai and one in Dubai (see table, below). The new partnerships come into effect on the day that Hogan Lovells officially launches, and with these additional partners the firm will have more than 800 partners located in offices across Asia, Europe, the Middle East and the US.
►► Lovells’ previous years’ elections to partnership Year
Number of partner promotions
2009
19
2008
18
2007
31
2006
18
2005
12
2004
15
2003
17
2002
19
2001
24
Bakers
Trowers, DLA
Allen & Overy
King & Spalding
King & Spalding grows Middle East practice with DLA, Trowers lawyers King & Spalding’s UAE offices have gained two new lawyers arriving from Trowers & Hamlins and DLA Piper. In Dubai, the firm has appointed Leroy Levy, Trowers’ former infrastructure partner and head of its Saudi practice. In Abu Dhabi, the firm has gained the head of DLA Piper’s Abu Dhabi construction and infrastructure practice, Timothy Burbury. King & Spalding’s new managing partner, Jawad Ali, who was appointed the position earlier this year, said the two new appointments would add more depth to his firm’s Middle East practice.
Herbert Smith
Herbies makes up three Asia lawyers to partner Three lawyers from Herbert Smith’s Asia offices have been made partners, as part of the firm’s annual partnership exercise. Tokyo disputes lawyer Gavin Margetson, Singapore energy lawyer Lewis McDonald and Shanghai arbitration lawyer May Tai will join the firm’s partnership in May. The rest of the partners have been made up outside of Asia, with 14 in Europe and only one in the Middle East – corporate lawyer Paul Scarr in Abu Dhabi. All up, the firm will have 272 partners as of May. Clyde & Co
Bakers appoints Allen & Overy senior associate Baker & McKenzie.Wong & Leow has appointed
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former Allen & Overy banking & finance lawyer Emmanuel Hadjidakis as an associate principal in its finance & projects practice. Hadjidakis, a senior associate at Allen & Overy’s Singapore office, and prior to that worked at Allens Emanuel Hadjidakis Arthur Robinson’s Sydney office. His practice focuses on Islamic finance, restructuring and general banking.
According to the firm’s senior partner Alvin Yeo, Watson’s appointment is part of strategy aimed at expanding the firm’s Gulf offering “to beyond construction and corporate advisory areas”.
Freshfields
Freshfields promotes two Gulf lawyers to counsel Freshfields has promoted two Middle East-based lawyers to counsel – Abu Dhabi-based project finance lawyer Marc Fèvre and Dubai-based aviation finance lawyer William Coleman. In Asia, the firm has also promoted two finance lawyers to counsel – Hong Kong-based Robert Lonergan, and Tokyo-based Don Stokes. Middle East managing partner Joseph Huse said the new Gulf counsel will be expected to further develop the finance practice for the firm.
Dentons
Dentons looks to Middle East and Central Asia for promotions Denton Wilde Sapte has made up only two lawyers to partner as part of its annual promotion and both are based in the Middle East and Central Asia region. The numbers are down from last year when the firm made up six lawyers to partner. The firm’s new partners are energy & infrastructure lawyers Ian McGrath in Oman, and Victoria Simonova in Kazakhstan. Chief executive Howard Morris said that the location and practice area of the new partners are significant: “[They’re] both Victoria Simonova based in our international offices [which] is a reflection of the sustained levels of growth we have seen and are supporting in the Middle East and Central Asia. It’s also no coincidence that they are both energy lawyers, as we expect this sector to grow significantly in the future,” he said.
WongPartnership
Clyde & Co loses Qatar MP to WongPartnership In one of the Gulf’s most high-profile lateral moves this year, Singapore-based firm WongPartnership has secured Clyde & Co’s Qatar managing partner Andrew Watson. Watson will join WongPartnership as co-head of its Middle East practice and will sit within the firm’s IP and media & technology practice. Watson will share the Middle East MP role with Paul Sandosham who has been at the helm of WongPartnership in the Gulf since it launched in Qatar in 2007. Watson, who has also spent time with Denton Wilde Sapte in Muscat, London and Brussels (where he was managing partner), also boasts strong credentials in the energy, infrastructure, trade and banking & finance sectors.
Paul Hastings
Orrick
Paul Hastings loses China PE head to Orrick The head of Paul Hastings’ China PE practice Maurice Hoo has left the firm to become the co-head of global PE for Orrick in Hong Kong. Hoo will share the role with Orrick’s London partner Peter O’Driscoll. He is expected to bring his clients with him, among which are PE firm Warburg Pincus and AIG Maurice Hoo Investments. Orrick’s global corporate head, Don Keller, said the appointment will help his firm focus on international PE transactions while retaining a focus on Asia. Asian Legal Business ISSUE 10.5
News | regional update >>
Regional updates
CHINA
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CHINA
Paul Weiss
Philippines
SyCip Salazar Hernandez & Gatmaitan
SINGAPORE Loo & Partners
Vietnam
Indochine Counsel
MALAYSIA
Wong & Partners
INDonesia
Bastaman Enrico
Each month, ALB draws on its panel of country editors to bring readers up to date with regulatory developments across the region
New Tort Liability Law in China As of July 1, 2010, China will have a specific law to govern tort liability. The Tort Liability Law (“Tort Law”) provides a general outline on the tort liability over wide-ranging matters, including data and environmental protections and product liability. The Tort Law reiterates subscribers’ freedom to legally use telecommunications and confidentiality of their communication afforded under the PRC Telecommunications Regulations. Article 36 provides that network users and network service providers are liable for tortuous acts they commit when utilizing networks. A network user whose right is infringed may demand the service provider to make necessary deletion, screening and disconnection to stop the infringement. A network service provider who is aware of an infringement but fails to take any necessary corrective measure shall bear joint and several liability with the infringer. The Tort Law officially uses the term “punitive damages” in Chinese law. Prior to the promulgation of the Tort Law, manufacturers of defective products are under consumer rights protection and product quality laws to pay compensation or be fined at amounts equal to specified multiples of the products’ values. Article 47 provides that manufacturers and sellers who knowingly produced or sold defective products that cause death or serious health hazard are liable to pay punitive damages, without a specific limit. Articles 45 to 46 also give an additional protection to consumers with a right to request manufacturers and sellers to eliminate and remove danger of unsafe products. If defects are found in products already in circulation, manufacturers and sellers shall issue
product warnings or, in severe cases, recall their products. Article 65 of the Tort Law introduces a no-fault based liability and stipulates that any person who pollutes the environment and causes damage is subject to tort liability, without specifically being found in violation of any specific environmental regulation. The burden of proof is also switched to the defendants in these environmental cases. They have the burden to prove they should not be liable for the pollution, or certain mitigating factors should apply or that there is no causation between their acts and the pollution. While the Tort Law has made an attempt to address many tort liability matters, the general nature of the law has left many questions unanswered. For example, how an aggrieved party could pursue remedies and the standard of calculating remedies are not spelt out in the law. The issuance of further judicial interpretations and guidance are anticipated to fill the gaps and give teeth to the legislation. Written by Jeanette Chan, partner Kayleigh Mak, legal intern Paul, Weiss, Rifkind, Wharton & Garrison Hong Kong Club Building, 12th Floor 3A Chater Road, Central Hong Kong Email: jchan@paulweiss.com Ph: (8610) 5828-6300 or (852) 2846-0300
Philippines
Availment of Incentives by Foreign Investors – A surmountable challenge Foreign investments continue to play a significant role in spurring economic Asian Legal Business ISSUE 10.5
News | regional update >>
growth in developing countries, like the Philippines. While domestic trade and local business may have aided in cushioning the adverse effects of the worldwide economic crisis that found its way to Southeast Asian shores from the West, the benefits arising from foreign investments are, to say the least, undeniable. In line with this, governments of countries like the Philippines have made the promotion of foreign investments a cornerstone of their economic policies. Legislatures have passed laws providing for tax and other incentives aimed at attracting foreign investors. However, the challenge seems to be in the implementation of such laws. And this is where the role of lawyers, particularly local counsel, cannot be undermined. It is typical for foreign investors to seek assistance from local counsel for the purpose of availing themselves of tax and other incentives allowed in the host country. There are instances, however, when regulatory agencies become engaged in a tussle that hampers the processing and grant of incentives. In the Philippines for instance, one particular challenge is the power of a local chief executive to give consent to an endorsement which is required in order to qualify an applicant-company for incentives granted to locators in economic zones. In this regard, local counsel’s advice and assistance would be valuable. Arguments put forward by local counsel help shape decisions to be rendered by relevant government agencies in relation to applications for incentives. In turn, such decisions become precedents that would aid in the speedy resolution of similar issues in connection with future applications for incentives. It may be said that the more predictable the process of availing of incentives becomes, the more likely that a transaction involving foreign investments, in which the obtaining of incentives is a condition, would proceed to closing. In sum, attaining synergy, efficiency and predictability in the implementation of laws providing for incentives to foreign investors appears to be a challenge that developing countries like the Philippines need to hurdle in order to promote and sustain www.legalbusinessonline.com
the inflow of foreign investments. However, such a challenge would be surmountable with the active participation of lawyers, particularly local counsel, in the processing of applications for incentives. Written By Benedicto P. Panigbatan SyCip Salazar Hernandez & Gatmaitan 3rd Floor, SSHG Law Center 105 Paseo de Roxas 1226 Makati City, Philippines T (632) 817 9811 to 20; 817 2001 to 09 F (632) 817 3896; 817 3567; 817 3145; 817 3570; 818 7562 E bppanigbatan@syciplaw.com W www.syciplaw.com
SINGAPORE
Singapore receives boosts in fertility for growth of mergers and acquisitions (“M&A”) – M&A Allowance and remission of stamp duty for Qualifying M&A Deals entered into from 1 April 2010 Two years after worldwide M&A plunged into a deal famine, 2010 seems to be a time of valuable opportunity for those with an appetite for acquisitions. Recently, the market has been buoyant with good news of economic recovery pouring in. The Ministry of Trade and Industry announced on 14 April 2010 that it expects the Singapore economy to grow by 7.0 to 9.0 per cent in 2010. Prime Minister Lee Hsien Loong said Singapore’s economy made a remarkable recovery from a year ago and expects a good year going forward. Without a doubt, Singapore’s
strong economic performance for the first quarter of 2010 has surpassed expectations with the speed of its rebound from the downturn. One of the strategies employed by the Government of Singapore to achieve higher productivity is to support the progressive restructuring of Singapore’s overall economy, towards higher-value, more competitive and more innovative players. The Government believes that it would be crucial to ensure a continuous flow of start-ups and new entrants into the economy, and to encourage the most efficient and competitive players the room to grow and scale up, through, amongst others, M&A. By creating a dynamic, innovative and viable small and medium-sized enterprise (“SME”) sector, the Government is hopeful that the SMEs may acquire the scale required to attract talent, invest in technologies and compete effectively in overseas markets. Accordingly, the Government has announced in the budget speech of 2010 that it would be facilitating M&A by introducing a new one-off tax allowance scheme and the remission of stamp duty to help defray a portion of M&A costs. The M&A allowance will be equal to 5% of the value of the acquisition. For example, the acquisition of a $5 million company will give the acquiring company a tax allowance of S$250,000. The acquiror will be able to deduct the tax allowance against its taxable income over a period of 5 years. The M&A allowance will be limited to a maximum of S$5 million in a single year of assessment. As a further measure to reduce the costs of M&A, the Government will also be waiving stamp duty on the transfers of unlisted shares for such deals (which similarly, are executed from 1 April 2010 to 31 March 2015 (both dates inclusive)). The stamp duty waiver will apply to such deals worth up to S$100 million in any year. This one-off concession will also be available for five years. The M&A tax allowance and stamp duty remission will collectively cost about S$100 million per year. Internal Revenue Authority of Singapore will be releasing further details by June 2010. Further clarity on what constitutes a “qualifying deal” is eagerly awaited. Although speedier growth can be
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News | regional update >>
achieved through M&A, an M&A exercise could often be risky, costly and disruptive. Accordingly, the Government’s initiative is lauded as a welcome assistance to lowering the risk and costs of M&A to a more manageable level. As these tax incentives provide significant tax savings, Singapore companies should seriously evaluate available M&A opportunities and make hay while the sun shines. Written by Ms Wong Joy Ling and Ms Lee How Fen Ms Wong Joy Ling, Foreign Counsel Senior Legal Associate ( Co r p o ra te P ra c t i ce ) Ph: (65) 6322-2234 Fax: (65) 6534-0833 E-mail: wongjoyling @ l o o p a r t n e r s . c o m . s g and Ms Chris Ling, Foreign Counsel Legal Associate (Corporate Practice) Ph: (65) 6322-2231 Fax: (65) 6534-0833 E-mail: chrisling@loopartners.com.sg Loo & Partners LLP 88 Amoy Street, Level Three Singapore 069907
Vietnam
IP-Related Aspects in Drug Registration in Vietnam The current Pharmaceutical Law requires a registration with the Drug Administration of Vietnam (DAV) before a drug can be distributed in the territory. There are three pertinent IP-related rights in the drug registration process: trademark, patent and data security. If a trademark is applied to a drug in an application for product registration, such application must be accompanied by a copy of a certificate of trademark registration or a trademark search result
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from the National Office of Intellectual Property (NOIP). An official decision on the formal acceptance of the relevant trademark application issued by the NOIP may also be accepted as evidence of the applicant’s rights to the trademark. Applicant for a drug registration is not required to submit to the DAV any evidence to proving patent rights to the drug or proving non-infringement of other’s patent rights. Owners of patent rights in Vietnam are, however, entitled to notify the DAV and the DAV will refer to such patent rights in examining drug registration applications. Information about active ingredients patented in Vietnam that have been notified to the DAV is published at http://www.dav.gov.vn/Default. aspx?tabid= 60. Data security is provided for in the Circular No. 05/2010TT-BYT dated 01 March 2010, that was recently promulgated by the Ministry of Health, and replaced Decision No 30/2006/ QD-BYT. Effective on 15 April 2010, the circular makes clinical drug test data subject to data security if it satisfies the following conditions: i. The clinical drug test data is for a finished drug containing a new active ingredient. A finished drug is a drug that has completed all stages of production. A new active ingredient is an active ingredient that has neither been granted registration for circulation in Vietnam or elsewhere more than 12 months prior to the filing date. ii. The data must be deemed to be a business secret under the current Law on Intellectual Property. iii. The data must be the result of an investment of significant effort. iv. A request for securing the data must be properly lodged with the DAV. Note that the security of clinical drug test data in an application dossier for registration of a drug will be refused if securing such data may have serious effects for the public health or if the drug is denied product registration. Upon determining eligibility for data security, the first in time application preempts all subsequent applications containing the secured clinical drug test data for 5 years from the grant of
the product registration. An exception exists where the applicant of the subsequent application dossiers obtains a letter of consent from the owner of the secured clinical drug test data or proves that the clinical drug test data included in the subsequent application was independently created. Information about drug registration with data security is published at http://www.dav. gov.vn/Default.aspx?tabid= 60. Written By Nguyen Thi Hong Anh, Partner / Head of IP & Technology Group Indochine Counsel Unit 4A2, 4th Floor, Han Nam Office Bldg. 65 Nguyen Du, District 1 Ho Chi Minh City, Vietnam (Tel) +848 3823 9640 (Fax) +848 3823 9641 anh.nguyen@indochinecounsel.com www.indochinecounsel.com
MALAYSIA
Compulsory Registration for Traditional Medicine Practitioners The Malaysian Ministry of Health (“MOH”) recently announced that it will soon be compulsory for all Traditional and Complimentary Medicine (“TCM”) practitioners to register with the MOH upon the passing of the Traditional & Complementary Medicine Bill, which is set to be tabled at parliament this year. Registration is currently voluntary and practitioners are encouraged to do so through the “ePengamal” online system as it forms an important database for the MOH to chart new strategies for the advantage of all practitioners in the country. The MOH reported approximately 15,000 practitioners in Malaysia as of March 2010, with only 1,000 practitioners registered with the MOH as of August 2009. Some of Asian Legal Business ISSUE 10.5
News | regional update >>
the popular TCM practices in Malaysia include acupuncture, homeopathy and reflexology. In view of the rampant availability of TCM practitioners across the country, there have in recent years been several calls for the MOH to enforce stricter regulation to ensure the efficacy and safety of TCM practices and products. Unsubstantiated and exaggerated claims by manufacturers of TCM products and the absence of approved standards for training, qualification and indemnity coverage for TCM practitioners are amongst some of the concerns voiced. There is thus a need for the MOH to establish objectives of training and defined core competencies for TCM practitioners and procedures affording the public the opportunity to pursue complaints against TCM practitioners whose acts are not compliant with prescribed codes of conduct. To address the issues highlighted above, the Traditional & Complementary Medicine Bill will, in addition to compulsory registration procedures, set up a council to regulate TCM practitioners similar to the Malaysian Medical Council which regulates doctors. The council would comprise of practitioners and ministry officials and be responsible for the issuance of guidelines and regulations for ethical TCM practice. In so doing, it is hoped that the practice of TCM will become a regulated profession developed within a safe and controlled environment in tandem with the interests of the public. Written by Chew Kherk Ying, Partner Sonia Ong, IP Manager Wong & Partners Level 21, Suite 21.01 The Gardens South Tower Mid Valley City, Lingkaran Syed Putra 59200 Kuala Lumpur, Malaysia Tel: +603 2298 7888 Fax: +603 2282 2669 kherk.ying.chew@wongpartners.com sonia.ong@wongpartners.com
www.legalbusinessonline.com
INDonesia
Indonesian Product Labeling Requirements – The Introduction Of Regulation 62 Generally, labeling requirements for products (including food, beverages and drugs) have been tightly regulated in Indonesia. In order to provide for better consumer protection, expanded labeling requirements for products sold in Indonesia have been recently introduced by the Government of Indonesia. The scope of the new labeling legislation has been extended to products such as household electronic products, telecommunication products, building materials and motor vehicle spare-parts. The Ministry of Trade Regulation No. 62/M-DAG/PER/12/2009 (“Regulation 62”) provides that labels on products that are manufactured or imported by businesses for sale in the territory of Indonesia, must at the very least, contain the following information: (i) name and address of the manufacturer or importer and (ii) description of the products. Information on products labels which relate to safety, security, consumer health and the environment must include (i) the usage guidance and (ii) relevant hazardous symbol and/or a clear warning sign. In relation to labeling standards, the Regulation 62 requires product labels to be described in clear and concise Bahasa Indonesia. However, Regulation 62 contains exceptions relating to the use of foreign languages, Arabic numerals or Latin alphabets which are permitted only if there are no suitable Bahasa Indonesia translations for the relevant words or phrases. The Regulation 62 also contains exception relating to: (i) products which are sold in bulk form and directly packaged before reaching consumers and (ii) motor vehicle spare parts which are imported by manufacturers or distributors approved by the Directorate
General of Domestic Trade, Ministry of Trade, as raw and/or supporting materials. In such circumstances, the manufacturer or distributor may sell the products without conforming to the Indonesian labeling requirements. Any failure to comply with the labeling requirements imposed by Regulation 62 may expose the offending manufacturer or importer to sanctions including product recalls from the market, trading business license revocation, or criminal liability as stipulated under Indonesian Consumer Law. Regulation 62 is intended to take effect within one year of its enactment or by 21 December 2010. Notwithstanding the lack of any official statement been released by the Ministry of Trade thus far, industry observers expect that Regulation 62 will take effect by 1 July 2010. Written By Enrico Iskandar and Debu Batara Lubis Enrico Iskandar Managing Partner, Bastaman Enrico E-mail: enrico@bastamanenrico.com Debu Batara Lubis Associate, Bastaman Enrico E-mail: debu@bastamanenrico.com Bastaman Enrico (Attorneys At Law) Plaza Asia, Zone 12C Jl. Jend. Sudirman Kav. 59 Jakarta 12190 Indonesia Tel: +(62 21) 514 01 380 Fax: +(62 21) 514 01 379 www.bastamanenrico.com
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ALB special report | Japan 2010 >>
JAPAN 2010
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Asian Legal Business ISSUE 10.5
ALB special report | Japan 2010 >>
A financial crisis along with political and regulatory uncertainty may have slowed the Japanese economy in 2009 but half-way through 2010 fortune and renewed confidence is returning – for the country’s economy as well as its legal services market. ALB takes a look
A
t the depths of the economic downturn in 2009, domestic recovery seemed to be nowhere in sight. Unlike the seemingly unflappable emerging markets of India, China and South-East Asia, the situation in Japan was depressed and remained so for much of the first half of the year. It was compounded by nearly a decade of slow economic activity and an inexorable decline in staple sectors like real estate, flagging capital markets and political uncertainty. This confluence of factors had led many to suggest that the country was staring down the barrel of a ‘second downturn’ in 2010. But as Japan heads into the second part of the year, the worst of the financial crisis seems to have abated – as has talk of a second downturn. Dealflow has seemingly been restored (although, as in most other economies across the region, the mega-transactions have been replaced by a flood of smaller deals) and confidence has picked up. This has been evident to the extent that signs of life have even reappeared in the country’s ailing real estate sector. This is not to say that Japan’s economic fortunes have been completely reversed (think of the effect that highprofile corporate failures of Toyota and JAL has had on business confidence). There is lingering political uncertainty but the signs are positive for the nation’s economy this year, and are perhaps just as good for law firms in the country, many of whom have used
www.legalbusinessonline.com
the comparatively quiet times of 2009 to rebuild, restructure and refocus their practices.
2009: annus horribilis for foreign law firms in Japan?
That last year was a difficult year for law firms in Japan is no secret. A downturn in capital markets and real estate practices – and in some cases cross-border work – caused severe discomfort, the only answer to which was a drastic scaling back of operations. The result, of course, was mass layoffs, particularly at the associate and junior-lawyer level, as well as the repatriation of many foreign attorneys back to head offices or other branch offices within the region. “Some foreign law firms did it really tough over the past 12 months,” said one Tokyo-based partner at an international law firm. “Some firms, like Paul Hastings, Linklaters and Allen & Overy have been hit hard because their core areas were suffering.” This partner notes that while further layoffs by international firms are “unlikely” this year, many firms are still exploring ways to minimise the pressure on their bottom lines. “Some foreign law firms have sent associates and counsels on longterm or mid-term secondments to other international offices in the region,” the partner said. “I’ve heard of cases where gaiben have started to work two months in their Beijing or Shanghai office
►► Brighter times ahead for in-house lawyers in Japan In-house salaries in Japan remain flat in 2010 despite increased demand for corporate counsel, according to a report published recently by Japanese recruitment consultants Optia Partners. The report notes that although hiring activity was possibly at its lowest point for some time over the last 18 months, the legal services employment market seems to have bottomed out from Q2 2010, pointing to the fact that some companies have opened up new roles in regulatory and compliance, banking and insurance. In a trend that is identical to elsewhere in the region, foreign companies ( gaishekei) continue to out-pay their local equivalents by – in some cases – as much as 30%. But the jury is still out on whether foreign or local companies are better places to work for in-house lawyers. The report notes that while the culture within foreign companies means they still may be ahead in this regard, a number of local companies like Mitsubishi, Sony and Fujitsu are highly recommended for the excellent training programs they offer their legal staff.
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ALB special report | Japan 2010 >>
“We have seen more demand in areas related to the financial crisis. This means more work in insolvency and bankruptcy, as well as in regulatory and corporate crisis management” Akira Kosugi
Nishimura & Asahi
and then one month in Tokyo.” Yet this is not to say that all foreign law firms have suffered – in fact the performances of some firms has been impressive (for example, MoFo, Milbank and Herbert Smith). The downturn has provided a salutary lesson in practice management for international law firms in Japan, many of whom have already re-evaluated their strategies in the country. Whether this process will be successful depends on a number of factors, not least the continued economic recovery internationally and domestically, and whether international law firms who have entered the country with a view to servicing only a handful of practice areas, are capable of executing a strategic u-turn. “It will be quite difficult for some international law firms to regroup,” said the same partner. “There’s no doubt that some need to… but for a
firm that has entered [the market] on the understanding that they would do 80% [of their business in] realestate/finance work, it remains to be seen how easily they can restructure to do other things. I don’t know of many international law firms that have a client base, or head office, that flexible.” Nonetheless, this process of diversification is one that is seemingly already occurring in Japan. Most foreign law firms have reinforced their presence in dispute resolution and many Hisashi Hara are said to be eyeing Nagashima Ohno & Tsunematsu developments in the renewable and green energy spheres. “We have seen a number of deals in the energy space, particularly renewables – wind and solar energy” said Mark Weeks, managing partner of Orrick in Tokyo. “Japanese utilities are
►► Gaisekei versus Japanese Companies: Average salary by position 35
Foreign companies 30.44M
Japanese companies 30 M= millions of Yen
25
20.09M
20 17.29M 15.87M 14.27M
15 11.4M 10
5.58M 5
5.23M
0 Legal staff
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Legal manager
Legal counsel
Legal director/ general counsel Asian Legal Business ISSUE 10.5
ALB special report | Japan 2010 >>
keen to invest overseas because their markets here have been deregulated so there is more domestic competition.” Weeks also notes an upturn in enquiries from clients in the life sciences sector, where he says two-way investment levels will increase in the year ahead.
The local market
To suggest that local law firms in Japan have escaped the same pressures squeezing the bottom lines of their international counterparts would be incorrect. Domestic law firms were not immune from the drop-off in capital markets, structured finance and realestate work. But unlike many of their international counterparts, these law firms in Japan were better-placed to capitalise on the increased workflow in counter-cyclical areas like insolvency & restructuring and litigation, due to the ‘full-service’ nature of their practices. “Japanese law firms that handled a wide scope of business transactions have not been affected as badly during this crisis,” Masanori Sato says Masanori Sato, Mori Hamada & Matsumoto a partner with Mori Hamada & Matsumoto. “Of course the downturn in corporate and finance transactions affected firms, but depending on the size of their bankruptcy and insolvency practices they would have been able to limit this damage.” Akira Kosugi, managing partner of Nishimura & Asahi, shares Sato’s assessment of the market, noting that from what he had heard most firms had performed “much better financially than they had expected in 2009.” He notes that this is as much due to the increase in activity coming from the insolvency and restructuring areas as the emergence of new pockets of advisory work for domestic law firms. “We have seen more demand in areas related to the financial crisis. This means more work in insolvency and Akira Kosugi bankruptcy, as well as in Nishimura & regulatory and corporate Asahi www.legalbusinessonline.com
crisis management.” Hisashi Hara, of Nagashima, Ohno & Tsunematsu adds competition and antitrust to this practice list and is optimistic about the amount of work on Mark Weeks Orrick offer for local law firms in this area. “We are seeing strong demand in anti-trust because of the increase in cross-border transactions by Japanese companies,” he says. “As the economy stabilises and transaction levels pick up, this area will grow especially on the more sophisticated deals.” For example, in Panasonic’s recent tie-up with its ailing rival Sanyo, both Nagashima Ohno & Tsunematsu (Panasonic) and Mori Hamada & Matsumoto (Sanyo) were called on to provide Japanese competition law advice. This increased demand in newer areas of practice has forced many local firms into deepening the diversification of their practices. For instance, all of the ‘Big Four’ have a dedicated presence in areas like litigation and arbitration – whereas only one or two did five years ago. Of course, in tandem with this process has been renewed activity in staple areas of practice for local law firms in Japan. Crossborder volumes started to pick up from Q4 2009, and the capital markets saw small issues plus mega-global offerings – the likes of which had not been seen for almost two years in Japan. “M&A and capital markets activity should remain robust in the year ahead,” says Sato. “Just how robust is hard to predict – but we will most certainly see private equity and foreign funds return. Strategic M&A will continue and from what we can already see, calmer economic conditions will see Japanese companies continue to invest elsewhere in Asia, particularly in emerging markets in India, China and South-East Asia.” Hara also notes an upturn in enquiries from the Chinese. “Companies in mainland China – along with some in Singapore and Malaysia – have expressed interest in acquiring Japanese companies, mainly SMEs, particularly those with ready-made technology. This trend is something
“We have seen a number of deals in the energy space, particularly renewables – wind and solar energy. Japanese utilities are keen to invest overseas because their markets here have been deregulated, so there is more domestic competition” Mark Weeks Orrick
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ALB special report | Japan 2010 >>
“Quite a few local firms staffed up heavily in anticipation of banking & finance and M&A work taking off in 2009, meaning that they are now a little bottomheavy. This puts some in a difficult position. They need to trim staff numbers but probably aren’t ready to do this yet” Bonnie Dixon
Atsumi & Partners
that is heavily backed by the Japanese government.”
to make the endeavour worthwhile.” Yet it seems that Week’s enthusiasm is not shared by a majority of his international counterparts. In a quick Daniel Hounslow poll covering Tokyo Atsumi & managing partners of Partners major foreign firms, 94% said they would not be interested in opening a second office in Japan. But once you get out of Tokyo, finding the right people becomes a different proposition, says Atsumi & Partners’ Daniel Hounslow. “If you have a family there is major quality of life and quality of education difference between somewhere like Osaka and Tokyo,” he says.“This would make staffing an office out there very difficult for international law firms. There is good reason that most law firms in Tokyo do not have offices in Osaka.” Unsurprisingly, local lawyers feel that even if international law firms were to open additional offices in the country, its impact on the local market would be negligible. One partner at a local Japanese firm says he is confused about why this is necessary. “Perhaps it is just about giving foreign law firms equal treatment but I don’t think any will open branch offices in Japan, especially in light of the difficult period they have just been through.”
Further liberalisation on the cards?
Despite the general poor health of the international segment of the Japanese legal services market, further liberalisation could be on the cards – which may pave the way for foreign firms to open more than one branch office in the country. In mid April 2010, the Ministry of Justice (MOJ) announced its intention to update the current law which permits foreign law firms to have only one office in Japan in association with a domestic law firm. It is understood that the amendment would extend to foreign law firms the same rights as domestic law firms vis-a`-vis office expansion. Currently, local Japanese law firms are allowed to open more than one office in the country if they enter into a professional corporation. It is believed that the proposed amendments will be submitted to the Diet in the fourth quarter of this year and could come into effect from January 2012, meaning that foreign law firms could soon be opening offices in places like Osaka or Kyoto very Hiroo Atsumi soon. Atsumi & Partners Osaka is home to many major Japanese companies like Toyota, Osaka Gas and Panasonic, but it is underserviced by foreign law firms, says Weeks. “There are a lot of manufacturing clients in that [Western] region and very substantial client bases [there]. We will definitely look at [opportunities], but you really need to find the right people
Local challenges
Despite this spike in new areas and counter-cyclical areas of practice, Japanese companies face some challenges in the year ahead. Practitioners ALB spoke to note that although the upturn in work in these
►► IN-HOUSE legal Industry positions – japan Legal staff Min (JPYm)
36
Legal manager Max (JPYm)
Avg (JPYm)
Min (JPYm)
Legal counsel
Max (JPYm)
Advertising & consumer
4.5
7.0
Finance
4.0
8.0
5.7
Insurance
5.0
9.0
5.8
Life science
4.0
8.5
6.6
8.0
Manufacturing
4.0
8.0
5.6
5.0
Technology
3.5
8.0
5.5
5.5
24.0
6.3
8.0
Avg (JPYm)
12.0
10.5
7.0
24.0
10.0
20.0
Min (JPYm)
Legal director/general counsel
Max (JPYm)
Avg (JPYm)
8.5
25.0
13.7
14.0
7.0
50.0
13.4
11.0
20.0
16.0
11.7
10.0
22.0
11.2
9.0
12.7
12.0
25.0
Min (JPYm)
Max (JPYm)
Avg (JPYm)
13.1
28.0
19.5
20.1
12.0
100+
30.0
15.1
13.0
27.0
20.4
22.0
14.2
10.0
30.0
19.4
23.0
15.4
11.0
23.5
16.5
15.7
11.0
36.0
19.0
Asian Legal Business ISSUE 10.5
Firm Profile report | Japan 2010 >> ALB special
Mori Hamada & Matsumoto
Foreign insolvency proceedings in Japan
A
s a natural consequence of the Lehman shock back in 2008, many international business entities have become insolvent and have filed for legal proceedings in their respective jurisdictions in the past couple of years. In some instances, foreign insolvent companies which commenced their bankruptcy proceedings in their own jurisdictions have certain assets in Japan. Liquidators or administrators of these companies will be obligated to move such assets back to their countries and/or dispose of them in order to maximise the distribution of assets to creditors in compliance with the applicable bankruptcy laws. Some of these liquidators or administrators intuitively ask themselves the following question: does my appointment as liquidator/ administrator by the competent court with jurisdiction in my country give me authority over the debtor company in Japan? This article will give you an outline of the relevant law of which you should be aware when acting as a liquidator/administrator of an international entity which has certain assets in Japan.
Recognition Order and Assistance Order Even if the law under which you are appointed as a liquidator/administrator sets out that it will be applicable to the insolvent entity’s assets located in a different jurisdiction, Japanese law does not automatically recognize foreign legal proceedings or your authority in the Japanese territory. You must first obtain a Recognition Order from a Japanese court for the legal proceeding to be recognized by the court, in accordance with the Act on Recognition and Assistance for a Foreign Insolvency Proceedings (RAFIP Act.) This legal procedure is in line with the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (UNCITRAL), which requires
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such recognition from local courts before a foreign liquidator/administrator may act with authority in the territory. However, unlike the position under the UNCITRAL Model Law, the Japanese Recognition Order does not by itself result in automatic provision of certain assistance to foreign liquidator/administrator. In Japan, the Recognition Order is simply a precondition for obtaining one or more Assistance Orders. These include (i) an order to injunct an ongoing compulsory execution against debtor’s assets, (ii) an order to generally prohibit compulsory execution against debtor’s assets, (iii) a general prohibition of asset disposal and repayment of debts by the debtor, and (iv) an order to exclusively give asset disposal rights in Japan to the debtor-in-possession or foreignappointed liquidator/administrator (called an Administration Order). It is important that a foreign-appointed liquidator/administrator understands that he/she is not legally empowered to take control over or dispose of debtor’s assets located in Japan without first obtaining the Administration Order. Japanese law considers that the debtor’s assets can only be controlled or disposed of by the existing executive officers and does not automatically recognise the liquidator/administrator’s authority as given by a foreign legal system. Thus, in the case where a liquidator or administrator of a debtor sells debtor’s certain assets and re-patriates the proceeds to the company’s jurisdiction without first obtaining an Administration Order in Japan, it may be regarded as theft or embezzlement under Japanese criminal law.
Restriction on disposal rights Once an Administration Order is issued, the foreign liquidator/administrator will become an approved trustee under the RAFIP Act, and becomes the sole person who can control the debtor’s business and dispose
of the debtor’s assets in Japan. However, even having secured the Administration Order, the approved trustee must also obtain individual court approvals each time it wishes to dispose of debtor’s assets or transfer them beyond Japan’s borders. This restriction is intended to prevent unjust removal of such assets from Japan and to protect domestic creditors’ rights. From a foreign liquidators/ administrators’ standpoint, obtaining such individual approvals is quite burdensome and unnecessary, as they are already appointed as the authorised fiduciary of the debtor under the law of the relevant jurisdiction and are therefore obliged to meet their fiduciary obligations. This would seem to make any further imposition by the Japanese courts unnecessary. The author admits that it seems somewhat strange that the RAFIP Act requires individual approval for asset disposal to protect domestic creditors, since the court will have already recognized the foreign proceedings as fair and legitimate during the process of issuing the necessary Recognition Order. Having said that, it is not advisable to neglect the requirements of the RAFIP Act in taking the risk of committing theft or embezzlement under the Japanese law. If you think the individual approval of asset disposal is a redundant requirement in your case, you may want to specifically explain and exhibit to the Japanese court the fairness of the proceedings in your country and how the Japanese creditors would be equally treated thereunder. Then one could request that the Japanese court issues a “catch-all” approval to apply to all of the company’s assets, or that it expedites the future approval process. Accumulating these efforts would help rationalise the court practice and facilitate international bankruptcy practitioners’ activity in Japan in the future. Junichi Tobimatsu, partner Mori Hamada & Matsumoto email: junichi.tobimatsu@mhmjapan.com tel: +81-3-5223-7760
37
ALB special report | Japan 2010 >>
has been noticeable, very few said that it compensated for the downturn being felt in other ‘fee-fat’ areas like M&A, banking & finance and real estate. As a number of observers pointed out, this may force many local firms into making difficult strategic decisions in the year ahead if they wish to preserve the growth that many have displayed such a penchant for over the last decade. But such decisions won’t come easily – as Bonnie Dixon, a partner with Atsumi & Partners, points out. “Quite a few local firms Bonnie Dixon staffed up heavily in Atsumi & anticipation of banking Partners & finance and M&A work taking off in 2009 meaning that they are now a little bottom-heavy,” she says. “This puts some in a difficult position. They need to trim staff numbers but probably aren’t ready to do this yet.” “Bottom-heavy” is something that a number of the country’s ‘top four’ admit to being, with many firms saying they
38
are looking at limiting the number of associates, junior lawyers or support staff they bring in over the next few months. While the lightning organic growth of previous years may not be attainable for many in 2010, many Japanese law firms may be well served by looking to growth of a different kind – the broadening of their international offerings. Offices in mainland China have been an important part of the international strategies of Mori Hamada and Anderson Mori, and now Nishimura & Asahi has announced it will open on the mainland in the coming months, but there is already a sense that Japanese firms must do more – especially as Japanese clients become increasingly active in markets like India and South-East Asia. Whether this would involve establishing additional branch offices is still unclear. Of all the local law firms ALB interviewed for this report, only Nishimura & Asahi’s Akira Kosugi admitted that his firm was “looking at the possibility of South-
East Asian offices.” Nonetheless, the process of internationalising one’s practice need not be only about opening offices across the region. It can start at home by bringing on board international lawyers who can often compensate for a firm’s lack of geographical coverage. One law firm that has been something of a pioneer in this regard has been Atsumi & Partners. In addition to having admitted the first foreign lawyer to partnership at a local law firm, the firm has a number of international lawyers in its ranks. “We have seen international work coming to us because of our foreign credentials… and because of this we are well positioned to take such business away from our competitors,” notes Hounslow. Regardless of what method is pursued, it is clear that this process of internationalisation is an important one for Japanese law firms. It is yet another way that local law firms can prove their worth in a market where clients are demanding more of it and competition is intensifying. ALB
Asian Legal Business ISSUE 10.5
FEATURE | Offshore firms >>
Offshore law firms:
Consolidation beckons
40
Asian Legal Business ISSUE 10.5
FEATURE | Offshore firms >>
W
hen ALB last reported on the status of the offshore legal services market, the ire of a small, but vocal, segment of the world community was directed squarely at offshore financial centres. World leaders decried the role that that offshore locations were playing in cultivating ‘shadow banking systems.’ But as the pressures of the financial crisis eased and some of the less transparent offshore financial centres outlined their commitment to cooperating more fully with onshore regulators across the world, talk of the inherent ‘evils’ of offshore financial centres dissipated. Instead it is replaced with odes to their importance, and a seemingly worldwide recognition of the integral role that they play in keeping the wheels of the world economy turning. “International financial centres play a vital economic role in the global economy. In fact, the economic recovery has been aided by transactions that happened in these centres,” says Hugh O’Loughlin, head of Asia Hugh O’Loughlin for law firm Walkers. Walkers “As Asia continues to grow and mature as a global financial centre, it is important that investors and financial institutions look to the range of options available to them – including the use of international financial centres.” It is this renewed interest in offshore financial centres as conduits for investment in lucrative emerging markets such as China, India, Russia, Africa and South America that has kept, and is continuing to keep, offshore law firms in Asia busy. But just as attitudes to offshore financial centres have moved on markedly from where they were in 2009, so too has the complexion of the offshore legal services market. Consolidation, merger activity, regulatory changes – as well as the emergence (and reemergence) of new areas of practice – have rendered the legal market hierarchy as fluid as it has been for some time.
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State of the market
‘Buoyant’ is perhaps the best way to describe the offshore market at the moment, with those lawyers ALB interviewed noting that they are seeing the full spectrum of work now, from GFC-related restructurings to an abundance of corporate work, funds and listing matters. Christine Chang, joint managing partner of Maples and Calder’s Hong Kong office says that while there is still some GFC-related work to come, firms are enthused by the increase in activity in other areas as well. “Having worked on a number of hedge fund restructurings, schemes of arrangement, and cross-border insolvencies during 2009, the first quarter of 2010 has, by contrast, brought a flow of new non-GFC related “new money” deals such as IPOs, new hedge fund start-ups and financings,” she says. “We are also seeing new “green energy” projects… dealflow is moving from the West to the East, with an increase in outbound Asian investment, particularly into emerging markets such as Latin America and Africa. 2010 marks a new era in terms of lessons learnt post-GFC.” Carol Hall, head of investment funds for Walkers in Hong Kong says that while Walkers still has a number of restructuring projects in the pipeline, the speed of Asia’s economic recovery has meant “steady growth in new fund formation, downstream spends, and corporate finance-related transactions.”
“We have also been approached to advise investors on their inward investment into Jersey listed companies. We expect to see a new trend in the use of Jersey and BVI entities, particularly from clients based in Russia and Europe” Frances Woo
Appleby
►► Largest offshore law firms*# 1 2 3 4 5 6 7
Firm
lawyers
partners
Offices
Appleby Maples and Calder Conyers Dill & Pearman Walkers Ogier Arendt & Medernach Harney, Westwood & Riegels
207 196
74 62
11 7
163
41
11
146 170 270
48 33 30
7 9 6
62
23
5
*Only offshore law firms with a presence in Asia are listed #Global lawyers figures used
41
FEATURE | Offshore firms >>
Listings
Practitioners are equally as optimistic about the prospect of recovery on the region’s capital markets, with many lawyers noting that the Hong Kong Exchange’s decision to relax the listing requirements for Jersey and British Virgin Islands (BVI) incorporated companies has generated a fair amount of interest. This is notable because both jurisdictions have been historically popular with Asia-based clients. “From a BVI perspective, this development has generated significant interest among our clients as it simplifies the listing process and provides a cost-efficient exit strategy for investors in BVI-incorporated companies,” said Maples’ Chang. “The HKEX listing development should encourage yet more investment in China through BVI companies.” It’s also worth noting that BVI companies provided the second-largest source of foreign investment in China (at US$5.8bn) for 1H09. But others say that Jersey is generating as much, if not more interest, among their clients. While it is certainly attracting more attention in Asia, historically BVI is the preferred jurisdiction, “as companies are better known and Asian clients, especially in China, have a comfort level with BVI,” saysDenise Wong, a partner with Walkers in Hong Kong. “That said, there seems to be more interest in using Jersey for HKEX listings, so it will be interesting to see what happens in the coming months.” Frances Woo, managing partner of Appleby in Hong Kong, adds that this should also see an increase in other types of investment related to BVI and Jersey-incorporated companies. “The relaxing of the listing rules for Jersey and BVI has been met with great interest… particularly within the private equity sector,” she says. “We have also been approached to advise investors on their inward investment into Frances Woo Appleby Jersey listed companies. We expect to see a new trend in the use of Jersey and BVI entities, particularly from clients based in Russia and Europe.” 42
But despite the positive signs surrounding this development, a “wait and see” approach may be needed until some of the finer details are ironed out, of which clarification on the Stock Exchange of Hong Kong’s Practice Note vis-a-vis BVI listings and what is needed to satisfy the nexus requirement between the BVI and the business and operations of the company being listed is the arguably the most pressing.
Islamic finance
Both Islamic financial institutions and issuers of Shariah-compliant financial products are searching for ways in which they can, inter alia, avoid taking on debt in excess of their share capital – especially in the context of sukuk. Offshore financial centres and law firms stand to benefit. “Islamic finance structures and sukuk transactions, in particular, are a growing source of business for offshore jurisdictions,” says Chang. “Many Islamic finance structures require offshore companies and vehicles to hold assets or issue securities as part of more complex arrangements. This is becoming an important market for the offshore industry.” But as Kerri Lefebvre, managing partner of Conyers Dill & Pearman in Dubai, is quick to point out, sukuk is not the only product that issuers are showing an interest in. “[While] the use of offshore companies continues to be popular for sukuk and other Islamic finance transactions… the use of offshore trust structures is increasing and offshore companies are also being used in wakala, murabaha and musharaka structures.” Growth of this area of offshore law is one that all of the major players are keen to secure a share of, but it is one that also presents immense challenges for practitioners. Most of the largest offshore law firms have hired lawyers who can advise on Shariah law over the last 12 months. As lawyers ALB interviewed have noted, given that the offshore component of Islamic finance transactions are but one of several parts of a structure, offshore firms will need to work closely with onshore firms and other jurisdictions. Chang says the other difficulty facing offshore law firms relates to holding
assets. She explains that offshore structures often require that assets be held in other jurisdictions. But many of the jurisdictions where Islamic finance is popular have strict local ownership laws, requiring complicated arrangements to be put in place before the offshore companies can hold the Christine Chang Maples and underlying assets. Calder In terms of offshore jurisdictions, the most popular centres to date have been Cayman, Jersey, Bermuda and Luxembourg – while Singapore and Hong Kong are also seen to be making positive inroads. Luxembourg, for example, has a long history with Islamic finance having been chosen to domicile the first Shariah-compliant insurance company in Europe in 1983. The Luxembourg Stock Exchange was also the first European stock exchange to enter the sukuk market, having listed since 2002. As at the end of 2009, 15 sukuk have been listed and traded on the Luxembourg Stock Exchange, and 39 Shariah-compliant investment funds and sub-funds have been established in the jurisdiction. While Luxembourg may be a popular destination for European and US issuers, for those in Asia and the Middle East, offshore markets with which they are already familiar are proving the most popular. “The Cayman Islands continues to be a leading choice of domicile for Islamic finance transactions,” says Conyers Lefebvre. “Bermuda’s reputation as a premier jurisdiction for aircraft registration and finance has enabled it to position itself as the jurisdiction of choice for sukuk and other Shariah-compliant structures, using aircraft as an asset base.” Appleby’s Woo adds BVI and Jersey to the list, saying that BVI’s popularity with Asian clients and Jersey’s “strong regulatory environment and reputation” mean they are also both well placed to develop their Islamic finance market in the future. However, the dark horse in this race is most surely the Malaysian federal territory of Labuan. Recently, the Labuan Financial Services Authority introduced a new regulatory framework for captive insurance, trusts and Asian Legal Business ISSUE 10.5
FEATURE | Offshore firms >>
foundations, as well as Islamic financial services and products. Director-general Azizan Abdul Rahman is confident that these new laws will boost business in the jurisdiction by 20% this year. And four new laws were enacted with comprehensive amendments made to four existing ones. “The profile of a jurisdiction will be raised once an important or landmark Islamic finance transaction is launched in such a jurisdiction,” said Lefebvre noting that the task for any offshore, or onshore, jurisdiction wishing to increase their market share of Islamic finance transactions must ensure that their tax laws do not put Islamic finance transactions at a disadvantage.
Further consolidation beckons?
By almost every measure, 2009 was a watershed year for the offshore legal services market. Mergers (such as Appleby’s acquisition of Dickinson Cruickshank and the impending merger between Mourant and Ozannes) as well the creation of a number of new firms
and office openings by others, have turned the offshore legal market status quo on its head. But despite the changes that have occurred over the past year, there is still a sense that this process of consolidation is incomplete and that the new status quo’s stay is temporary. “General business sense indicates that additional consolidation will be seen within the offshore legal market,” says Appleby’s Woo. “A strong combined and substantial firm has the financial, management and professional resources for clients to achieve efficiencies and economies of scale. We expect that to lead to further consolidation in due course.” Interestingly, others see consolidation of a different type occurring. Spencer Privett, joint managing partner of Maples and Calder in Hong Kong, says “the number of sustainable offshore jurisdictions is declining. Rather than work coming from an increasing number of offshore centres, we believe that offshore business will consolidate into a few leading jurisdictions such
“As Asia continues to grow and mature as a global financial centre, it is important that investors and financial institutions look to the range of options available to them – including the use of international financial centres”
Navigating offshore options can be tricky. Appleby offers our clients skilled advice and a depth of knowledge across our offshore jurisdictions. Our Hong Kong office has been guiding clients
Hugh O’Loughlin
Walkers
Bahrain Bermuda British Virgin Islands
to the best options for Asian, Indian and African
Cayman Islands
investment for over 20 years. That’s what we offer
Guernsey
clients and why we continue to grow. We are pleased to announce the opening of our new Guernsey office. Unparalleled jurisdictional reach and trusted advice. Appleby. For further information, please contact: Frances Woo, Managing Partner, Hong Kong Tel: +852 2905 5720 Email: fwoo@applebyglobal.com
Hong Kong Isle of Man Jersey London Mauritius Seychelles Zurich
THE RIGHT PEOPLE. THE RIGHT PL ACES. THE RIGHT GUIDANCE. Offshore Legal, Fiduciary & Administration Services
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applebyglobal.com
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Firm Profile FEATURE | Offshore firms >>
Walkers
Arwel Lewis, looks at current trends in the Asian private equity industry Background
U
nsurprisingly, given the global economic landscape of the last few years, the private equity industry experienced a turbulent time in 2009, reflected by a challenging capitalraising environment for new private equity funds and a reluctance to call on investors to commit funds to new portfolio investments. General partners and managers also tell us that they had to commit significant time to the monitoring and restructuring of existing investments, which have been a drain on resources that could otherwise have been deployed on new fund raising or investments. However, promising signs during the first quarter of 2010, particularly in Asia, give grounds for optimism. Improvements in both the economy and stock indices (the Hang Seng Index crossed the 22,000 threshold in mid-April 2010, doubling from the lows of October 2008), a cautious re-emergence of leverage from the debt markets, improved business confidence and China’s continued economic growth and perceived role in leading the global economic recovery, has led to a marked increase in activity in the Asian private equity environment.
New Funds Large funds are making a re-appearance. Among the recently reported deals is the US$2.55 billion Carlyle Asia Partners III, one of the biggest private equity funds in the region since the height of the global financial crisis in 2008, which reportedly includes large institutional investors from around the world, including the U.S., Europe, Middle East and Asia. We have also seen a greater number of small and mid-market fund launches, seeking more achievable fund sizes and specifying more focused sector and geographic investment guidelines. Particular sectors that appear popular include infrastructure, healthcare, new energy and commodities, as well as the more traditional real estate funds. Unsurprisingly, China is the dominant geographic focus. In our experience there has also been several notable joint ventures between financial institutions and corporates with expertise in the fund’s targeted investment sector and geographic focus. The combination of the former’s access to capital and the
44
latter’s industry contacts and knowledge, proving attractive. The eagerness of large Chinese financial institutions to invest in and to sponsor their own Cayman Islands funds has also led to increased work flows. Generally speaking, a number of Walkers’ clients are working toward substantial closings, which supports a more positive outlook for capital deployment in the second half of 2010.
Fund Raising Trends On the fund raising side, some trends are becoming increasingly apparent. Investors are aggressively targeting fees payable to the general partner and fee free-periods are commonly demanded from funds. In addition, lengthier and more complex clawback provisions, enabling investors to recoup fees previously paid to the general partner, are becoming more common place, with some arrangements involving fees being paid into escrow to give investors greater comfort that the clawback obligations will be met. Investors are also becoming more focused on corporate governance and the ability to ensure that the investments pursued by their funds comply with various ethical standards. As a result, the frequency of side letters between the general partner and investors appears to be increasing, and the provisions of those side letters are becoming lengthier and more complex, perhaps reflecting the eagerness of general partners to secure investor’s commitments.
Investments and Exit On the investment side, there have been a number of high profile Asian public to private investments, including Carlyle’s successful investment in Natural Beauty Bio-Technology. In addition, Walkers investment funds team in Hong Kong and Singapore have been involved in a number of significant Pre-IPO investments, structured through subscriptions in convertible bonds, or perhaps more commonly, preference shares. As deal flow has started to return, the range of potential exit opportunities has widened, particularly with the recovery in global stock markets. As debt finance opportunities improve, trade sales have also become more realistic options. Private equity and venture capital owned companies featured strongly in a wave of IPOs over the last six months (Carlyle investee
Arwel Lewis
companies China Forestry Holdings and Kaisa Group, and The Jordan Company’s exit from International Mining Machinery, being prime examples), as firms looked to release value from investments made over the past few years, a trend that is expected to continue during 2010.
RMB Funds Finally, RMB Funds, structured as PRC partnerships seeking investment in yuan, as opposed to the market standard Cayman Islands partnerships (raising US Dollars), are also firmly in focus, following recent high profile announcements by US private equity giants Carlyle and Blackstone that they have teamed up with partners in the PRC to form and manage funds. The market awaits with interest whether the current legal and regulatory hurdles to allow foreign investors to invest directly in RMB funds, and to negotiate the applicable foreign exchange restrictions, can be overcome. Until those issues can be definitively addressed in legislation, it seems likely based on our experience, that the Cayman Islands and the Cayman Islands exempted limited partnership will remain as the jurisdiction and structure of choice for new fund structures in Asia. Arwel Lewis is a senior associate in the Investment Funds team in the Hong Kong office of Walkers, one of the leading offshore law firms practicing Cayman Islands, British Virgin Islands and Jersey law.
15th Floor, Alexandra House 18 Chater Road Central, Hong Kong T +852 2596 3319 F +852 2284 4560 arwel.lewis@walkersglobal.com Asian Legal Business ISSUE 10.5
44
FEATURE | Offshore firms >>
www.legalbusinessonline.com
45
FEATURE | Offshore firms >>
as the Cayman Islands and the BVI,” he said. “Our view is that the more recently established jurisdictions have attracted business as a result of their network of Double Taxation Treaties (“DTTs”). With increased focus on maximising tax collections in many onshore jurisdictions, Spencer Privett national tax authorities Maples and are starting to deny Calder tax treaty benefits to entities which do not have substantive operations in the relevant offshore jurisdiction. Privett cites changes to tax practice in the PRC as an example, saying that the issuance of Circular 601 by the Chinese State Administration of Tax has introduced uncertainty in assessing a claim for DTT tax benefits, for a typical vehicle established in an offshore jurisdiction such as Barbados or the Seychelles. “As the likelihood of successfully claiming DTT benefits diminishes, Cayman and the BVI will
find themselves on the same playing field with regard to taxation as the DTT jurisdictions.” But while there will always be competition for work between offshore financial centres, there has perhaps never been more of a need for them to cooperate as well. To this end, a firm dialogue has already been established through the International Financial Centres Forum, an organisation formed in December 2009 by a group of offshore law firms including Appleby, Conyers, Mourant, Ogier and Walkers. “We see more cooperation among offshore jurisdictions and law firms,” says John Rogers, head of finance for Walkers in Singapore. “The best example of this is the formation of the IFC… [which] aims to present a more coordinated response to the political rhetoric aimed at offshore financial centres, so that policy makers fully understand the positive contributions that IFCs make to the global economy and the potential consequences of restricting their activities.” ALB
“After a number of hedge fund restructurings, schemes of arrangement, and cross-border insolvencies during 2009, the first quarter of 2010 has, by contrast, brought a flow of new non-GFC related “new money” deals such as IPOs, new hedge fund start-ups and financings” Christine Chang
Maples and Calder
ROBERTSON JOINS TOP TEAM • Everton Robertson will join Richard Thorp and Harriet Unger in Thorp
Alberga’s newly opened Hong Kong office from 1 June 2010. Previously with Linklaters and Shearman & Sterling, Everton was most recently a private equity partner in Walkers’ Hong Kong office.
• Everton focuses on pre-IPO financing, private equity, M&A and capital
markets and is admitted in both Cayman and the British Virgin Islands. Everton has acted for major financial institutions, corporates and private equity firms throughout Asia.
• Thorp Alberga is a boutique law firm offering
Cayman Islands and BVI legal advice from our Hong Kong office.
2606 The Centrium 60 Wyndham Street Central, Hong Kong Tel: +852 2801 6066 Fax: +852 2801 6767
Harbour Place South Church Street, George Town Grand Cayman, Cayman Islands Tel: +1 345 949 0699 Fax: +1 345 949 8171 www.thorpalberga.com
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Asian Legal Business ISSUE 10.5
FEATURE | Offshore firms >>
www.legalbusinessonline.com
47
EVENTS | SE Asia Law Awards >>
►► Firms – leading finalists Firm Allen & Gledhill
WongPartnership
Clifford Chance
Allen & Overy
Linklaters
Hadiputranto, Hadinoto & Partners
Latham & Watkins
Rajah & Tann
Shearman & Sterling Stamford Law Corporation
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No. 28
15
14
11
11
10
9
9
9 9
Law firm awards Commercial litigation Construction International arbitration IP Real estate Singapore deal Singapore shipping Tax & trusts Commercial litigation Construction Managing partner Real estate Singapore deal Tax & trusts International deal Thailand deal
International deal Managing partner Thailand deal
Energy & resources International deal
Indonesia deal
Energy & resources International deal
Commercial litigation Construction International arbitration Real estate Singapore deal Singapore shipping International arbitration International deal Singapore deal
Baker & Mckenzie. Wong & Leow
8
IP Tax & trusts
Rodyk & Davidson
8
Davis Polk & Wardwell
7
IP Managing partner Real estate Singapore deal International deal
Amarchand & Mangaldas & Suresh AShroff & Co
6
India deal
Deal awards Asset & corp finance Debt market Equity market Insolvency Islamic finance SE Asia M&A Singapore M&A Asset & corp finance Equity market Insolvency Singapore M&A Debt market Equity market Insolvency Project finance SE Asia M&A Singapore M&A Equity market Debt market Insolvency Islamic finance Project finance SE Asia M&A Singapore M&A Debt market Equity market Insolvency Islamic finance SE Asia M&A Singapore M&A Debt market Equity market Insolvency Islamic finance Project finance SE Asia M&A Debt market Equity market Project finance SE Asia M&A Singapore M&A Insolvency Project finance
Debt market Project finance Singapore M&A Asset & corp finance Debt market Equity market Insolvency SE Asia M&A Singapore M&A Asset & corp finance Equity market Insolvency Islamic finance Project finance Asset & corp finance Insolvency SE Asia M&A Singapore M&A Debt market Equity market SE Asia M&A Debt market Insolvency Project finance SE Asia M&A
►► Firms – leading finalists (CONT) Firm Lovells Lee & Lee
No. 6
Law firm awards Energy & resources Managing partner
Luthra & Luthra
6
Milbank
6
Energy & resources India deal Energy & resources International deal
Norton Rose
5
Energy & resources International arbitration
Walkers
5
Offshore
White & Case
5
Assegaf Hamzah & Partners
4
Conyers Dill & Pearman
4
Jones Day
4
Melli Darsa & Co
4
Sidley Austin
4
Offshore
Sycip Salazar
4
Philippines deal
Zul Rafique & partners
4
Malaysia deal
Albar & Partners
3
Ali Budiardjo, Nugroho, Reksodiputro
3
Indonesia deal
Appleby
3
Offshore
AZB & Partners
3
India deal
Azmi & Associates
3
Malaysia deal
Baker & Mckenzie
3
Freshfields Bruckhaus Deringer Ince & Co
3 3
International deal Thailand deal Vietnam deal Vietnam deal SE Asia shipping
J Sagar & Associates
3
India deal
Kadir, Andri & Partners
3
Malaysia deal
Makarim & Taira S
3
Makes & Partners Romulo Mabanta Shook Lin & Bok
3 3 3
Indonesia deal Philippines deal Malaysia deal
Deal awards Asset & corp finance Islamic finance SE Asia M&A Singapore M&A Debt market Project finance Debt market Equity market Islamic finance SE Asia M&A Equity market Project finance SE Asia M&A Asset & corp finance Islamic finance Singapore M&A Equity market Insolvency Project finance SE Asia M&A Debt market Equity market Islamic finance Insolvency Asset & corp finance Debt market Singapore M&A Debt market Insolvency SE Asia M&A Debt market Equity market SE Asia M&A Debt market Equity market Insolvency SE Asia M&A SE Asia M&A Singapore M&A Equity market Islamic finance Insolvency Islamic finance Project finance SE Asia M&A Asset & corp finance Insolvency Insolvency Debt market Asset & corp finance Islamic finance
Singapore M&A Asset & corp finance Islamic finance Project finance Insolvency Equity market Islamic finance Insolvency Project finance SE Asia M&A SE Asia M&A SE Asia M&A Asset & corp finance SE Asia M&A
Asian Legal Business ISSUE 10.5
| SE| SE EVENTS EVENTS AsiaAsia LawLaw Awards Awards >>
The finalists revealed!
Commensurate with the growth of the profession as a whole, the biggest night on this year’s legal calendar features a bigger, wider and deeper array of talent than ever before. Here is a complete list of all the finalists across the 36 categories of this year’s ALB SE Asia Law Awards 2010
deals of the year Asset & Corporate Finance Deal of the Year Finalists
►► Asia Lion and PSA World Port term loan facility Firms: Allen & Gledhill Banks: DBS Bank; Intesa Sanpaolo; OCBC; Bank of TokyoMitsubishi UFJ; United Overseas Bank • US$1.1bn term loan facility granted to Asia Lion and PSA World Port for refinancing and for general corporate purposes • one of largest syndications on Singapore market, at height of financial crisis • allows the company to draw in four different currencies, reflecting diverse revenue source of company ►► Mapletree Trustee bridge loan refinancing Firms: Allen & Gledhill; Stamford Law Corporation Bank: DBS Bank • US$669m senior facility andUS$77m mezzanine facility used to refinance existing US$0.76bn bridge financing for the acquisition by Mapletree of commercial properties • managing requirements of senior lender and mezzanine lender in documentation and their respective rights to security package was challenging • facilitating discharge and re-mortgage of portfolio of assets (including the undertaking of relevant due diligence) was difficult given its sheer size ►► Safeena first investment Firms: Allen & Gledhill; Azmi & Associates; Blank Rome; Ince & Co; Mochtar Karuwin Komar; Vogt & Wiig; Walkers Banks: Amanahraya Investment Management Sdn Bhd; Asian Finance Bank • investment in stainless steel chemical carrier made through istisna’a and ijarah mawsufah fi zimmah structure (ie Islamic deferred purchase and forward lease arrangement) • first time this type of financing adopted by a fund, let alone an Islamic shipping fund, particularly in midst of economic recession; was first investment by shariah compliant shipping fund outside Middle East • multi-jurisdiction transaction involving legal counsel in Singapore, Malaysia, Indonesia, Marshall Islands, BVI and London www.legalbusinessonline.com
►► South Beach Consortium term loan facility Firms: Allen & Gledhill; Appleby; Baker & McKenzie. Wong & Leow; Conyers Dill & Pearman; WongPartnership Banks: DBS Bank; HSBC; OCBC; Sumitomo Mitsui; United Overseas Bank • S$400m raised through innovative cross-border structure involving mezzanine facility subordinated to senior bank lenders, and ability of investors of notes to convert notes into ordinary shares • one of largest property-backed loans made in Singapore market in the challenging economic and financial climate of 2009 • interplay between different senior and mezzanine financing structures and need to address varied intercreditor interests of senior and mezzanine lenders required detailed and delicate drafting of key provisions, resulting in intense negotiations
►► Suntec REIT refinancing Firms: Allen & Gledhill; Rodyk & Davidson; Shook Lin & Bok Banks: CIMB; Citibank; DBS Bank; Natixis; OCBC; Standard Chartered Bank; United Overseas Bank • S$825m term loan facilities to HSBC Institutional Trust Services as trustee of Suntec REIT • Refinancing of existing collateralised mortgage-backed securities, medium term notes and indebtedness under a revolving credit facility ►► UOL Equity Investment term loan facility Firms: Allen & Gledhill; Lovells Lee & Lee; WongPartnership Banks: ANZ; DBS Bank; ING Bank; United Overseas Bank • UOL takeover bid for UIC involved much strategising given the competition for control over UIC that followed a 2005 takeover bid by the largest single shareholder • change in statutory control over UIC will involve chain principle offer to be made for SingLand pursuant to Takeover Code • loan amount was so large that, given the credit situation, certain non-standard covenants had to be negotiated at length
Islamic Finance Deal of the Year FINALISTS
►► CIMB-Standard Islamic Infrastructure Fund Firms: Ashurst; Gibson, Dunn & Crutcher; Zaid Ibrahim & Co; Zul Rafique & partners
Banks: Asian Development Bank; CIMB; Islamic Development Bank • Asia’s first major multi-country Islamic infrastructure fund • fund will meet needs of investors looking for shari’ahcompliant equity investments by investing in many countries including Malaysia, central Asia, Azerbaijan, Bangladesh
►► Pengurusan Aset Air ijarah and musyarakah programme Firm: Albar & Partners Bank: CIMB Accountant: Ernst & Young • SPV incorporated to finance PAAB’s acquisition of water assets under National Water Services Industry Restructuring Initiatives using Islamic medium-term notes and Islamic commercial papers up to collective limit of RM20bn (approx US$6.2bn) • Maslaysia’s biggest corporate Islamic fund-raising, and used unique mixture of ijarah and musyarakah principles • finer points of restructuring initiatives, the governing Water Services Industry Act 2007 and applicable tenets of shariah law all had to be considered, as well as official state secrets ►► Petronas Jumbo sukuk Firms: Cleary Gottlieb; Kadir, Andri & Partners; Lovells Lee & Lee; Milbank; Zul Rafique & partners Banks: Bank of New York Mellon; CIMB; Citibank; Morgan Stanley • sukuk issued concurrently with US$3bn bond; size of the issue, widespread investor interest and involvement of multinational corporation such as PETRONAS make this truly global issuance • one of two largest global sukuks ever done and first global corporate sukuk of 2009 • largest Asia issuance in last 5 years and second largest Asia issuance ever ►► Republic of Indonesia US-dollar sukuk Firms: Allen & Overy; Assegaf Hamzah & Partners; Baker & McKenzie. Wong & Leow; Hadiputranto, Hadinoto & Partners; Linklaters; Marsinih Martoatmodjo Iskandar Kusdihardjo Banks: Barclays; HSBC; Standard Chartered Bank • Republic of Indonesia’s debut global sukuk transaction, valued at US$650m, denominated in US dollars • follows an ijara (sale and leaseback) structure; issuer, a state-
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EVENTS | SE Asia Law Awards >>
owned entity, will use proceeds of trust certificates to purchase beneficial rights over certain real properties which are then leased back for period equal to tenor of trust certificates • largest-ever US$ straight sukuk from non-GCC country; first benchmark US$ straight sukuk from Asia since 2007; largest sukuk since June 2007; only second Reg S/Rule 144A registered sovereign sukuk since Malaysia in 2002 ►► Safeena first investment Firms: Allen & Gledhill; Azmi & Associates; Blank Rome; Ince & Co; Mochtar Karuwin Komar; Vogt & Wiig; Walkers Banks: Amanahraya Investment Management Sdn Bhd; Asian Finance Bank • investment in stainless steel chemical carrier made through istisna’a and ijarah mawsufah fi zimmah structure (ie Islamic deferred purchase and forward lease arrangement) • first time this type of financing adopted by a fund, let alone an Islamic shipping fund, particularly in midst of economic recession; was first investment by shariah compliant shipping fund outside Middle East • multi-jurisdiction transaction involving legal counsel in Singapore, Malaysia, Indonesia, Marshall Islands, BVI and London ►► Sunway City musharakah mutanaqisah term financing Firm: Albar & Partners Bank: Maybank • refinancing of existing term loans to part-finance construction of Monash University’s Sunway Campus - the first foreign university campus in Malaysia • ground breaking in that it extended traditional Islamic boundaries of musharakah mutanaqisah (diminishing partnership), typically used for home financing by individuals by applying it to refinance existing term loans • declining balance partnership represented excellent example of concept at work as substitute for traditional debt
Insolvency & Restructuring Deal of the Year FINALISTS
►► Davomas restructuring Firms: Assegaf Hamzah & Partners; Clifford Chance; Davis Polk & Wardwell; Hadiputranto, Hadinoto & Partners; Harney; Jones Day; Makarim & Taira S; O’Melveny & Myers; Rajah & Tann; Sidley Austin; Skadden Banks: Deutsche Bank Accountants: BDO; PKF • first debt exchange offer coupled with an Indonesian “composition plan” bankruptcy process • exchange of existing high-yield notes for new ones at 50% discount achieved 98% acceptance - highly unusual for capital markets exchange offer ►► Deutsche Bank Lodha investment restructuring Firms: J Sagar & Associates; Juris Corp; O’Melveny & Myers Bank: Deutsche Bank • restructuring of original transaction involving investment of over US$400m in real estate by way of synthetic equity structure involved significant financial and structural reengineering in light of global credit crisis • involved filing an appeal before the High Court to reinstate the rights of the Investor under the investment documents and to successfully reverse the order of the CLB • innovative as it had to ensure that, without technically being in default, certain obligations of the group are waived but investor was still able to recoup envisaged returns and ensure asset base was not prejudiced in any manner ►► Lehman Minibonds settlement and unwinding Firms: Allen & Overy; Appleby; Cravath, Swaine & Moore; Fountain Court; Stamford Law Corporation; Weil Gotshal & Manges; WongPartnership Bank: HSBC Accountant: PwC
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• structure of Minibond Programme has different tiers and many different types of swaps, each requiring substantial documentation and review • both Singapore and English law have to be taken into account in the enforcement proceedings, and settlement deed entered into by seven geographically disparate parties • unprecedented legal issue on whether Lehman Brothers Special Financing would have priority claim on liquidation proceeds, and lack of judicial/commercial precedents in respect of numerous issues ►► Measat Satellite Systems project finance restructuring Firms: Albar & Partners; Baker & McKenzie. Wong & Leow; Clifford Chance; White & Case • restructuring of project financing in relation to M3 and M1R satellites involved 17 commercial lenders • negotiating restructuring of such large number of facilities, subject to several different governing laws meant transaction was highly complex – “even getting the 17 different parties to sign one agreement was in and of itself a significant achievement” • US Exim Bank element required solution that could satisfy both its stringent requirements for restructurings as well as keeping commercial banks happy ►► Suzlon Energy convertible bonds consent solicitation Firms: Allen & Gledhill; Allen & Overy; Amarchand & Mangaldas & Suresh A Shroff & Co; AZB & Partners; Bharucha & Partners; Clifford Chance; Linklaters; Talwar Thakore & Associates; White & Case • comprehensive exercise to obtain amendments to strict financial covenants and certain other terms of loan facilities (including US$500m in USD convertible bonds) in order to achieve greater financial flexibility • first comprehensive restructuring exercise of convertible bonds of Indian issuer, and first exchange offer of convertible bonds issued by Indian company • first time Reserve Bank of India has allowed the all-in cost ceilings to be exceeded for restructuring of existing convertible bond issued by Indian company ►► TT International restructuring Firms: Allen & Gledhill; ChrisChong & CT Ho; David Lim & Partners; Drew & Napier; Harry Elias Partnership; KhattarWong; Premier Law; Rajah & Tann; Rodyk & Davidson; Stamford Law Corporation; Tan Peng Chin; Unilegal; WongPartnership • consensual restructuring through the implementation of a scheme of arrangement • TT has close to 80 subsidiaries in various jurisdictions around the world, which gave rise to challenging cross-jurisdictional legal and practical issues in the restructuring; also TT’s creditors comprise mixed group with widely divergent interests (including over 20 bank lenders) • TT successfully obtained a court order to convene meeting of creditors for entering into a scheme of arrangement; High Court has since issued order approving the scheme
Project Finance DEAL OF THE YEAR FINALISTS
►► Aircel Indian telecom infrastructure project financing Firms: Amarchand & Mangaldas & Suresh A Shroff & Co; Baker & McKenzie. Wong & Leow; J Sagar & Associates; Khaitan & Co; Shearman & Sterling; White & Case • p r o j e c t f i n a n c i n g o f a G SM / A B S b a s e d m o b i l e telecommunications service for telecommunication circles in India • financing combined Indian rupees, US dollar facilities and export credit facilities - unusual for project financings in India to use foreign currencies • one of the few foreign funded telecoms financings to have
occurred in India in recent years, and first deal that China Development Bank and Sinosure have done in India ►► ONGC Greenfield Petrochemical Complex Project financing Firms: Amarchand & Mangaldas & Suresh A Shroff & Co; Luthra & Luthra • US$2.69bn mega petrochemical complex slated to become one of largest petrochemical complexes India • entire debt component entirely financed through rupee facility, evidencing growing appetite of Indian lenders for mega infrastructure projects in India • only large-scale petrochemicals in India to be promoted by public sector undertakings in recent times ►► Perusahaan Listrik Negara Fast Track Programme project financing Firms: Aditomo Ariyanto Peri Hantono; Ali Budiardjo, Nugroho, Reksodiputro; Clifford Chance; Hadiputranto, Hadinoto & Partners; Makarim & Taira S; Mochtar Karuwin Komar; Norton Rose Banks: Bank of China; Barclays; China Development Bank; China Exim Bank • first long-term bilateral or syndication-based Rupiah fundings to be successfully concluded with banks since 1995 and first loan guaranteed by Ministry of Finance • financing notable for its scale (approximately US$5bn) at a time when credit is scarce • involvement of Chinese banks adds cross-border element ►► Sasan Ultra Mega Power Project financing Firms: Luthra & Luthra; Paul Hastings; Singhania & Co • at over US$4bn this was largest financing since outbreak of credit crisis • structure enables company flexibility to use portions of the facility committed by different lenders optimally • structure achieves avoidance of interest rate or currency rate risk, within parameters of traditional syndicate philosophy of equal risk sharing between lenders ►► Senoko Power Project refinancing Firms: Allen & Overy; Clifford Chance; Latham & Watkins; Rajah & Tann Banks: ANZ; Bank of Tokyo Mitsubishi UFJ; BNP Paribas; Calyon; DBS Bank; Fortis Bank; ING Bank; KBC Bank; Mizuho Corporate Bank; National Australia Bank; Natixis; OCBC; RBS; Societe Generale; Sumitomo Mitsui; Sumitomo Trust & Banking Co • refinancing of existing bridge loan involved rolling over existing hedge arrangements and establishing corporateguaranteed loan for refurbishing power plants • multi-jurisdictional issues involved because transaction involved Belgian and Japanese sponsors and Dutch and Singapore borrowers and mezzanine lender that is Japanese governmental entity • several branches to this financing, each individually highly innovative and complex
Debt Market Deal of the Year FINALISTS
►► Adaro Indonesia US$800m bond offering Firms: Emmet, Marvin & Martin; Hendra Soenardi; Latham & Watkins; Lubis Ganie; Milbank; S&R Associates; Shearman & Sterling; Stamford Law Corporation Banks: Bank of New York Mellon; Credit Suisse; DBS Bank; OCBC; UBS Accountant: PwC • US$800m guaranteed senior notes issue was first 10-year Indonesian private sector USD corporate high-yield bond and largest of any maturity • undertaken in tandem with US$500m bank facility when financing for resources sector, particularly in Indonesia, was highly competitive and still recovering from crisis Asian Legal Business ISSUE 10.5
EVENTS | SE Asia Law Awards
• one of first, and largest, deal taken to market since requirement that all transactions documents be translated into Bahasa Indonesia was passed, which added further time pressure ►► Indika US$230m senior notes offering Firms: Allen & Overy; Assegaf Hamzah & Partners; Conyers Dill & Pearman; Davis Polk & Wardwell; Melli Darsa & Co; Osman Bing Satrio & Rekan; Sidley Austin Banks: Citigroup Global Markets; HSBC Accountants: Deloitte; PwC • US$230m high-yield note offering employed complex security involving parent and subsidiary guarantees, share pledges, inter-company loans, and a covenant package ensuring bondholder protection • senior secured notes issued in 2007 required issuer to solicit highly technical and necessary consents from existing noteholders, which further complicated transaction’s structure • note’s indenture was to be amended by way of new intercreditor agreement, creating critical prerequisite for new notes offering within limited timeframe ►► Majapahit US$1.25bn guaranteed notes offering Firms: Allen & Gledhill; Dewey & LeBoeuf; Hadiputranto, Hadinoto & Partners; Linklaters; Shearman & Sterling Banks: Barclays; UBS • largest USD bond issue by Indonesian company in 2009; two tranches of US$750m and US$1.25bn • tranche one’s two-tier structure is to cater for the “beneficial owner concept” introduced under certain Indonesian tax rules • tranche two, unlike most global bond issues by Indonesian companies, uses two SPV subsidiaries, for more effective tax planning ►► Republic of Indonesia US$3bn bond offering Firms: DLA Piper; Linklaters; Marsinih Martoatmodjo Iskandar Kusdihardjo Banks: Barclays; CIMB; Citigroup Global Markets; Credit Suisse; Deutsche Bank; Nomura; UBS • first guaranteed medium-term note program established for the Republic of Indonesia • biggest emerging market sovereign bond since Czech Republic in June 2008; largest sub-investment grade offering since April 2008; and largest deal in Asia since Hutchison Whampoa’s US$5bn dollar deal in Nov 2003 • drawdown involved dual series issuance pursuant to Rule 144A and Reg S, and followed four weeks after establishment of program ►► Sterlite Industries US$500m convertible bond offering Firms: Henry Davis York; Latham & Watkins; Luthra & Luthra; S&R Associates; Shearman & Sterling Banks: Deutsche Bank; Morgan Stanley • first ever convertible security offered by an Indian issuer in the US in an SEC-registered offering • deal was structured like an Indian CB with a five-year maturity and no put, but since the bonds are convertible into Sterlite’s American depositary shares (ADS) listed in the US, it was marketed like a US deal • featured highest conversion premium (37.5%) on Asian convertible bond in 2009 and represented one of most significant registered convertible bond offerings out of India in recent times ►► Tata Steel US$875m exchange offer Firms: Allen & Gledhill; Amarchand & Mangaldas & Suresh A Shroff & Co; AZB & Partners; Linklaters Banks: ABN AMRO; Calyon; Citigroup Global Markets; Standard Chartered Bank • At US$875m was largest ever exchange offer for convertible bonds in the Asia-Pacific region • one of the first and the largest exchange offers for convertible bonds by an Indian company • one of first few transactions in which Reserve Bank of India allowed all-in-cost ceilings to be exceeded for restructuring of existing convertible bonds issued by Indian company
www.legalbusinessonline.com
►► Temasek US$1.5bn guaranteed notes offering Firms: Allen & Gledhill; Davis Polk & Wardwell; Latham & Watkins Banks: Deutsche Bank; Goldman Sachs; Morgan Stanley Accountant: KPMG • Rule 144A and Reg S offering by Temasek Financial of US$1.5bn of guaranteed notes (under its US$5 billion medium-term notes programme) • one of the largest Singapore offerings of the year ►► Vincom US$100m convertible bond offering Firms: Clifford Chance; Jones Day; Shearman & Sterling; VILAF; YKVN Bank: Credit Suisse • Vietnam’s first overseas sale of convertible bonds and also first international capital raising from any Vietnamese issuer since US$750m sovereign bond in 2005 • no concrete procedure in place for registering and approving convertible bonds in Vietnam, so various regulatory authorities could request supporting documents at different stages of each approval; much uncertainty as to when each approval could be obtained • many other challenges related to lack of familiarity of stakeholders with this transaction type, language, etc – a pioneering deal
Equity Market Deal of the Year ►► Bank Danamon Indonesia rights offering Firms: Bahar & Partners; Davis Polk & Wardwell; Hadiputranto, Hadinoto & Partners; Melli Darsa & Co Banks: Citibank; Morgan Stanley Accountant: KPMG • at US$335m was largest rights issue by a financial issuer ever carried out in Indonesia, and was 99.9% subscribed, making it most successful rights offering in Asia to date in 2009 • first rights offering from Indonesia where international investment banks served as sole standby purchasers to backstop the offering • one of largest international rights offerings ever out of Indonesia, so required significant effort to synchronise local laws and regulations with international underwriting and offering practices ►► Bank Tabungan Negara IPO Firms: Assegaf Hamzah & Partners; Baker & McKenzie. Wong & Leow; Sidley Austin; Soemarjono, Herman & Rekan Banks: CIMB; Mandiri Sekuritas Accountant: Ernst & Young • proceeds of US$199m made it largest listing on IDX in 2009 • first major international privatization in Indonesia to be executed by IPO in over two years ►► BW Plantation share issue Firms: Bahar & Partners; Baker & McKenzie. Wong & Leow; Hadiputranto, Hadinoto & Partners; Moore Stephens; Norton Rose Banks: BNP Paribas; Danareksa Sekuritas • this is the first IPO in 2009 under the new Public Offering Regulation, which makes process substantially different and more complicated • regulatory changes increased exposure of underwriters significantly , with knock-on impact on legal work • employed ‘green shoe’ mechanism as well as issuance of new and divestment share ►► CapitaLand rights issue Firms: Allen & Gledhill; Latham & Watkins; Linklaters Allen & Gledhill; WongPartnership Banks: Bank of America Merrill Lynch; DBS Bank; JPMorgan Accountant: KPMG • at S$1.84bn this rights issue was one of largest by Singaporean company • first rights issue in Singapore to take advantage of SGX measures to facilitate equity fund-raising through rights
issues introduced in January 2009 • Temasek’s sub-underwriting participation was important as it supported comfort level of underwriters ►► CapitaMalls IPO Firms: Allen & Gledhill; Allen & Overy; Clifford Chance; WongPartnership Banks: Credit Suisse; DBS Bank; Deutsche Bank; JPMorgan • at S$2.8bn was largest initial public offering in Singapore since 1993 and ranked by Reuters as the tenth largest IPO globally in 2009 • one of the few initial public offerings (“IPO”) in Singapore involving the spin-off of a subsidiary by the parent company • size of deal meant: significant amount of legal due diligence, including co-ordination with foreign counsel in six other countries; and coordination across multiple practice areas ►► DBS Group rights issue Firms: Allen & Gledhill; Davis Polk & Wardwell; Venture Law; White & Case Banks: Citigroup Global Markets; Goldman Sachs; JPMorgan; Morgan Stanley; UBS • US$2.8bn deal was first significant international rights offering to be conducted under Singapore law • raised many Singapore law issues in connection with international underwriting and offering practices • one of first significant fund-raising exercises out of SE Asia since financial crisis and led way for many follow-on rights offerings ►► Maxis IPO Firms: Adnan Sundra & Low; Clifford Chance; Kadir, Andri & Partners; Linklaters; Zul Rafique & partners Banks: AmInvestment Bank; CIMB; CLSA; Credit Suisse; DBS Bank; Goldman Sachs; HSBC; JPMorgan; Maybank; Nomura; RBS; RHB; Standard Chartered Bank; UBS • USD3.3bn IPO of one of Malaysia’s leading mobile communications service providers • largest ever listing in Malaysia and SE Asia • transaction was first in Malaysia to feature cornerstone investors ►► Neptune Orient Lines rights issue Firms: Allen & Gledhill; Milbank; Stamford Law Corporation Banks: DBS Bank; HSBC; JPMorgan; Morgan Stanley • S$1.44bn rights issue fully backed by majority owner Temasek Holdings • deal done under strict confidentiality and was swiftly structured and announced following intensive discussions with parties over a single weekend • significant because of size of proceeds raised, despite prevailing risk-averse market environment
SE Asia M&A Deal of the Year ►► AIG Asia consumer finance business disposal Firms: Allen & Overy; Clifford Chance; Lee and Li; Linklaters; Romulo Mabanta; Russin & Vecchi; Sycip Salazar Banks: ABN AMRO; Deutsche Bank; Phatra Securities • US$310m deal conducted against background of Fed Reserve rescue of major financial institutions, so great deal of sensitivity as to risk of panic by depositors which might have resulted in ‘bank runs’ • every aspect of transaction monitored by Fed’s legal and financial advisers to ensure maximisation of disposal proceeds for benefit of US tax payers • transaction timetable always subject to change dependent on market sentiment with Fed standing by to provide emergency credit lines if required ►► BAT Indonesia - Bentoel merger Firms: Hadiputranto, Hadinoto & Partners; Herbert Smith; Hiswara Bunjamin & Tandjung; White & Case Bank: UBS Accountant: Ernst & Young
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EVENTS | SE Asia Law Awards >>
• US$326m fast-track merger was largest in Indonesia in 2009 • included complex issues with employees, sale forces, cooperatives and other third parties given pre-merger structuring, concurrent merger integration and restructuring of the BAT Group shareholding in PT BAT Indonesia for tax structuring reasons ►► China Investment Corporation - Bumi Resources investment Firms: Davis Polk & Wardwell; Jones Day; Maples and Calder; Samuel Sekuritas Indonesia Banks: China International Capital Corporation; Deutsche Bank Accountant: Ernst & Young • US$1.9bn investment was fully customized to suit CIC’s investment needs, and Bumi’s borrowing needs and existing indebtedness, in light of significant ongoing and future developments, acquisitions and borrowings • included customized call provisions providing for guaranteed internal rate of return and covenant package tracking traditional Asian high-yield terms, but in form of more traditional credit facility • structuring and executing investment took considerable coordination among US, Indonesian, Dutch and Chinese counsel, and consideration of laws and regulation of these jurisdictions ►► HSBC - Bank Ekonomi acquisition Firms: Hadiputranto, Hadinoto & Partners; Lovells Lee & Lee; Makes & Partners; Norton Rose Bank: HSBC • US$607m acquisition of 90% stake in Bank Economi • involved mandatory offer pursuant to Indonesian takeover regulations • one of the highest profile banking acquisitions in Indonesia to date and involved complex regulatory and commercial issues ►► Northstar Pacific - Delta - Buma transaction Firms: Ali Budiardjo, Nugroho, Reksodiputro; Clifford Chance; Hadiputranto, Hadinoto & Partners; K & L Gates; Melli Darsa & Co; Milbank; O’Melveny & Myers; Shook Lin & Bok; Rodyk & Davidson; Stamford Law Corporation; Susanto & Partners Banks: Bahana Securities; Bank of Tokyo-Mitsubishi UFJ; Barclays; CLSA; Danareksa Sekuritas; Deutsche Bank; ING Bank; Macquarie Capital; Sumitomo Mitsui Accountant: PwC • involves six major deals which were interwoven into one large transaction with simultaneous closings: i. Northstar bought 40% of Delta ii. Delta bought Buma iii-vi. Buma raised approximately US$1bn to finance its buyout by Delta through a refinancing, a new facility, a bond and an equity offering • requires complex documents to be prepared, and coordination with many parties involved in the transaction • involved rare leverage buy out (LBO) structure created to accommodate the acquisition of shares in BUMA by Delta
►► Qatar Telecom - Indosat tender offer Firms: Davis Polk & Wardwell; Dewey & LeBoeuf; Sidley Austin Bank: Goldman Sachs • US$815m deal triggered by Qtel’s initial acquisition of 40.81% interest in Indosat pursuant to a share purchase agreement with STT Communications • involved concurrent tender offers in Indonesia and US pursuant to Indonesian and US regulatory requirements • involved US, Indonesian and Qatari law ►► Royal Bank of Scotland Asia banking business disposal Firms: Allen & Gledhill; Blake Dawson; Haidermota & Co; Lee and Li; Linklaters; Makarim & Taira S; Makes & Partners; Romulo Mabanta; Russin & Vecchi; Sycip Salazar Banks: Bank of America Merrill Lynch; Credit Suisse; Morgan Stanley • approx US$550m deal involved super-regional strategic acquisition by ANZ bank of parts of RBS group in Asia across six countries through regional bidding process • transaction and implementing documents included complex transitional, shared services and business integration agreements, among other standard agreements • involved intensive and extensive strategic discussion and application of banking, corporate, labor, IP and other local laws and regulations, and is subject to various regulatory compliance and approvals ►► Tech Mahindra - Satyam acquisition Firms: Amarchand & Mangaldas & Suresh A Shroff & Co; Jones Day; Latham & Watkins; Sullivan & Cromwell Bank: Goldman Sachs • US$578m deal required multi-jurisdictional team (including attorneys from Asia, Europe and the US) to deal with securities laws of all countries in which Satyam was listed • extremely complicated: government took control of Satyam following accounting fraud and led auction process, so most senior decision makers had limited knowledge of workings of company • undertaken in adherence to rules of both SEBI and SEC, leading to many structuring challenges
IPP Financial Advisers Award Singapore M&A Deal of the Year ►► Advanced Technology Investment Company – Chartered Semiconductor Manufacturing acquisition Firms: Allen & Gledhill; Allen & Overy; Latham & Watkins; Shearman & Sterling; WongPartnership Banks: Citibank; Credit Suisse; Morgan Stanley; • very complex – lawyers needed not just to negotiate scheme agreement (subject to both Singapore and US laws) but also
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IPP Financial Advisers Pte Ltd is Singapore’s largest independently owned financial advisory. Founded in 1983, it is also Singapore’s oldest and most established, with a reputation for impartial advice and high levels of ongoing service rather than just simple product implementation. All representatives are licensed by MAS and offer clients the full range of services from life insurance and medical cover, to savings plans and wealth management, right through to legacy planning and will writing. There is also a specialist expatriate division offering tax-efficient and globally portable financial services. Based in Singapore, IPP also has licensed offices in Hong Kong and Malaysia. IPP currently has in excess of SGD 2.25 Billion of assets under advice and has recently established ‘IPP Privilege Circle’, with exclusive offerings and expert advice for High Net Worth individuals around the world. Contact details: Ian Pryor P: +65 6309 0138 | F: + 65 6309 0127 | E: eag@ippfa.com | W: www.ippfa.com
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come up with proposals (under Singapore and US laws) for taking out the debt as well as convertible preference shares • principals on deal based in Abu Dhabi and Singapore, and target listed on Singapore and NASDAQ, so negotiations took place in different parts of world and had to accommodate law issues in Singapore, Abu Dhabi and US • as well as the US$1.8bn cash element of the transaction, the deal also involved the acquirer taking on approximately S$3.1bn ►► KS Energy - Aqua-Terra - SSH privatisation Firms: Allen & Gledhill; Clifford Chance; Drew & Napier; Stamford Law Corporation; WongPartnership Bank: ING Bank Accountant: PwC • S$320m involved merger of three companies (KS Energy, Aqua-Terra Supply and SSH) listed on Singapore Exchange – a first for Singapore • complex transactional structure of inter-conditional schemes of arrangement coupled with capital reduction and consolidation of businesses via acquisition agreements ►► OCBC - ING Bank Asian Private Banking acquisition Firms: Castillo Laman Tan Pantaleon & San Jose; Clifford Chance; Drew & Napier; Freshfields Bruckhaus Deringer; Kim & Chang; Stamford Law Corporation; Sycip Salazar; Walkers Banks: Goldman Sachs; JPMorgan Accountant: PwC • one of largest value acquisitions of private bank in recent history, fully funded by cash • deal traversed Europe, Asia and Middle East, was fast-paced, and was time-sensitive spanning just over six months from start to completion • extensive regulatory and compliance approvals required in order to fulfill conditions precedent, including complex arrangements to ensure simultaneous completion of acquisition and rebranding and re-naming of target on same day ►► PetroChina - Singapore Petroleum acquisition Firms: Allen & Gledhill; Drew & Napier; Freshfields Bruckhaus Deringer; King & Wood; Shearman & Sterling Banks: Bank of America Merrill Lynch; Deutsche Bank • US$2.3bn deal was challenging as PetroChina is a company listed on Shanghai, Hong Kong and New York; target company of acquisition was also listed company in Singapore • four law firms cooperated closely in this deal and made announcements in four jurisdictions almost simultaneously to comply with rules of each exchange • first public takeover by a Chinese company of a target in Asia, and possibly largest public M&A deal in Singapore corporate history since 2001 ►► Sincere Watch acquisition Firms: Conyers Dill & Pearman; Linklaters; Lovells Lee & Lee; Richards Butler; Rodyk & Davidson; Walkers; Wong Thomas and Leong; WongPartnership • complex S$113m deal was acquisition by a consortium that included former Sincere owner and PE company • Involved default on loan by previous acquirer leading to sale of charged shares by lender, and the lender taking an equity stake in the offeror • subscription price payable by lenders for shares in the offeror will be set off against the cash consideration that will be due to them for tendering charged shares into the offer
SE Asia Deal of the Year FINALISTS TO BE ANNOUNCED AT THE EVENT
Singapore Deal of the Year FINALISTS TO BE ANNOUNCED AT THE EVENT Asian Legal Business ISSUE 10.5
EVENTS | SE Asia Law Awards
in-house awards Banking and Financial Services In-House Team of the Year • CIMB • Citibank • DBS Bank • HSBC • Maybank • OCBC • Standard Chartered Bank
Investment Bank In-House Team of the Year • Bank of America Merrill Lynch • Credit Suisse • Deutsche Bank • Goldman Sachs • JPMorgan • Morgan Stanley • Nomura • UBS
IT/Telecommunications In-House Team of the Year • Axiata • Maxis • SingTel • StarHub • Tata Communications
Real Estate & Construction In-House Team of the Year • Capitaland • City Development • Far East Organization • Jones Lang LaSalle
FINALISTS
Allen & Gledhill • Practice has over 60 lawyers making it one of the largest in Singapore. • In 2009 acted on such matters as RBS/ABN Amro Bank NV in the High Court of Singapore in respect of class actions brought by minibond investors, Tiger Airways in a claim against Swissport and WBL Corporation for alleged contravention of insider trading rules.
Drew & Napier • 7 Senior Counsel- practice is winner of this category since its inception in 2005 • Advising the MAS in relation to the Lehman Minibond notes programme and sucessfully represented Singapore PM Lee Hsien Loong and Lee Kuan Yew in defamation action against the Far East Economic Review
Rajah & Tann • Well rounded commercial disputes practice is a perennial finalist in this category • Representative matters include acting for security services provided against a defamatory whistle blower and various matters before the Competition Appeal Board of Singapore.
Wong & Leow • Fifteen-strong commercial litigation team which has grown significantly over the past 12 months • Representative matters include acting for PT Panasonic Gobel Indonesia in its dispute with Stratech Systems Limited and successfully acting for clients against a fraudulent scheme which originated in Canada.
WongPartnership • One of Singapore’s largest Commercial litigation practices headed by four Senior Counsel www.legalbusinessonline.com
• Cargill (Singapore) • MISC Berhad • Neptune Orient Lines • Pacific Carriers
Singapore In-House Lawyer of the Year • Capitaland – Low Sai-Choy • City Development – Sharifah Shakila Shah • DBS Bank – Kenneth Fagan • OCBC – Loretta Yuen Ling • StarHub – Veronica Lai
Singapore In-House Team of the Year FINALISTS TO BE ANNOUNCED AT THE EVENT
FIRM AWArds Commercial Litigation Law Firm of the Year
Hill Dickinson Award for Shipping In-House Team of the Year
• Representative matters include acting for shareholders of Petroval Singapore in long-running, multi-jurisdictional dispute arising out of the Yukos Oil Saga and a number of club-related law suits involving defamation and misrepresentation.
Construction Law Firm of the Year FINALISTS
Allen & Gledhill • A perennial finalist in this category, Allen & Gledhill’s practice spans both contentious and non-contentious work. • Significant representative matters include acting for Tuas Power in a project to design, procure, commission, start-up, test and deliver the S$2bn BioMass Clean Coal Power and Multi-Utilities Plant and acting for the consortium developing the S$2bn South Beach Project
Drew & Napier • A finalist in this category for the last 3 years, the firm again polled strongly during the research process.
Pinsent Masons • A new entrant, the firm took out the award in this category at the 2009 Hong Kong ALB Law Awards. • Boasting a team of ten lawyers focused almost exclusively on construction work the firm and its local ally MPillay, have been involved in almost every major construction and infrastructure project undertaken in Singapore in 2009.
Rajah & Tann • Practice houses over 30 lawyers and two senior counsel and a winner in this category for four of the past five years. • Practice spans Singapore, Malaysia, and other parts of Southeast Asia as well as the PRC.
WongPartnership • Another name to appear regularly as a finalist the firm also
has the largest number of accredited adjudicators appointed under the Building and Construction Industry Security of Payment Act (Cap 30B) • Highlights include advising Sports Services Ltd. in relation to the tender to design, develop and operate the Changi Motor Sports Hub, the first fully integrated permanent race track
Energy & Resources Law Firm of the Year FINALISTS
Gibson, Dunn & Crutcher • Team is active in a number of industries in the energy and resources sector, including oil and gas (at all levels of the value chain including exploration, production, storage, refining, regasification, LNG, and production platforms); renewable energy (including wind, hydro, geothermal, solar, and biofuels); ethanol and methanol; pipelines; and mining (including aluminum, coal, copper, gold, iron, steel, and other natural resources).
Latham & Watkins • One of the most active practices in Southeast Asia the firm advises E&R companies on project financings, capital markets financings, bank financings and M&A activities across the region, but particularly in Singapore, Indonesia, India, Papua New Guinea, Laos and Thailand • Clients include PT Adaro and its subsidiaries, Senoko Power / Marubeni Corporation, Nippon Oil Exploration and Vedanta Resources
Linklaters • A perrenial finalist in this category, the firm’s E&R practice is active both in Singapore and throughout Southeast Asia • The firm has acted on a number of high-profile deals in the past year including one of India’s largest companies on its foreign listing
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EVENTS | SE Asia Law Awards >>
Lovells Lee & Lee
Rodyk & Davidson
• Another heavyweight in the E&R space in Southeast Asia, the firm is noted for its particular strengths in oil & gas where Singapore-based partner Brad Roach is seen as a key man by the industry • Highlights in 2009 include acting for PT Medco Energi Internasional Tbk in connection with several of its major projects, including the first downstream LNG project in Indonesia, the Donggi-Senoro LNG Project and Murphy Oil Corporation in connection with its successful bid for the Semai II Production Sharing Contract in Papua Indonesia
• Considered a heavy hitter in IP, the firm boasts one of the most well developed IP departments in country possessing a capability to cover services ranging from portfolio management to transactional and contentious work • Head of the firm’s IP & technology practice group Lee Ai Ming comes highly recommended
Luthra & Luthra • Highlights include acting as sole lenders’ Indian legal counsel to a syndicate of domestic and foreign lenders for financing of the approximately 4000 MW Sasan ultra mega power project, along with development of integrated coal mines for captive usage amounting to USD 4 billion. • Was also involved in the financing of the Phase IV (1980 MW) of the Adani Power Project at Mundra, Gujarat amounting to USD 1.5 billion.
Milbank • Another international firm with strong energy credentials, the firm had another stong year acting on Adaro Indonesia’s US$800m bond offering .
Norton Rose • With a dedicated team of energy specialists working in Singapore and throughout Southeast Asia, Norton Rose has had another strong year in which it acted on Perusahaan Listrik Negara’s Fast Track Programme project financing
IP Law Firm of the Year FINALISTS
Allen & Gledhill • Led by Senior Counsel Dr Stanley Lai, Allen & Gledhill’s IP group advises on a broad range of contentious and non-contentious matters and also boasts a specialized patents practice • One of few local law firms with a dedicated biotechnology practice, the firm has acted for Martek Biosciences Corporation in defending two patent revocation actions that were brought by Cargill International Trading Pte Ltd, in the Patent Registry and Mühlbauer AG in an appeal arising out of a patent infringement/invalidation trial in the High Court that was commenced by Mühlbauer against a competitor
ATMD Bird & Bird • A winner of this award for six consecutive years, ATMD Bird & Bird continues to shine, with its patent practice coming in for special mention. • 2009 saw the firm fight and win a number of landmark trademark and IP cases. Partner Sheena Jacobs come highly recommended.
Baker & McKenzie. Wong & Leow • 2009 was another busy year for the IP team at Baker & McKenzie. Wong & Leow • Representative matters include acting for Clinique Laboratories LLC in a well-known trade mark antidilution/infringement and passing off action and a major MNC software and consumer electronics company in an opposition in Singapore involving one of their key product marks, which also involves simultaneous proceedings in the United States, China, Malaysia and Hong Kong.
Drew & Napier • Award winning IP practice successfully acted for MediaCorp Ltd in a copyright infringement action concerning claims of groundless threats of copyright infringement as well as a counterclaim for copyright infringement. • Successfully represented SingTel, in a trade mark infringement matter against Taiwanese computer firm Mitac International Corporation, which alleged that SingTel used “mio” trademarks similar to those it already had in place.
Lee & Lee • Lee & Lee’s strengths rest in the fact that it provides equally as strong representation in contentious and non-contentious matters • Noted for its particular strengths in brand protection and portfolio management respondents singled out head of IP Tan Tee Jim SC as a leader in the field
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International Arbitration Law Firm of the Year FINALISTS
Allen & Gledhill • Led by partners, Andrew Yeo, Edwin Tong, Andrew Chan and Dinesh Dhillon, the firm’s international arbitration group has handled several complex arbitrations in 2009 with a total value in dispute exceeding US$2bn. • Highlights include: acting for a Foreign Bank in an arbitration relating to a purchase of distressed assets, acting for the employer in an arbitration of a transport infrastructure project dispute and acting for a US Fortune 500 company in an on-going SIAC arbitration against a Singapore Government Linked Company. The dispute concerns a chemicals production facility in the region.
Drew & Napier • A winner in this category in 2007 and 2009 the firm is home to a number of ‘heavy-hitters’ in international arbitration including Jimmy Yim and Cavinder Bull. • The firm is or has worked on a number of high-profile crossborder disputes over the past 12 months.
Herbert Smith • A powerhouse international arbitration outfit in the region and a regular finalist in this catgory Maurice Burke, joint head of the firm’s IA practice in SE Asia and Alastair Henderson both come highly recommended.
Norton Rose • Headed up by Guy Spooner, the firm’s international l arbitration and dispute resolution practice is said to be among a handful of elite practices in the region. • The firm’s capabilities in this area were strengthened by virtue of its merger with Deacons Australia.
Rajah & Tann • Led by Chong Yee Leong and anchored by Andre Yeap S.C., Francis Xavier S.C. and Chong Boon Leong, 2009 was another strong year for the firm’s world-renowned international arbitration practice. • On top of a GAR 30 ranking (The only Asian law firm to achieve such a feat) the firm had 62 pending international arbitrations with a total quantum value of US$3.9bn pending as at September 2009.
Shearman & Sterling • Headed by John Savage, the firm’s international arbitration group was again held in high regard throughout the polling process this year.
Offshore Law Firm of the Year FINALISTS
Appleby • Always a strong contender in this closely-fought category, the firm will once again be up for the top honour following another strong year. • The firm secured advisory roles on two finalist deals this year: The Lehman Minibonds settlement and unwinding as well as the South Beach Consortium term loan facility
Cains • This Isle of Man specialist had another strong year to back up its good showing in 2009. • A surprise packet at last years awards winning 4 deal awards including the coveted Singapore Deal of the Year and SE Asia Deal of the Year
Conyers Dill & Pearman • A winner in this category last year the firm continues to be
among the most active in the Southeast Asian region • The firm will once again be in the reckoning for the top award following its roles on Indika’s US$230m senior notes offering, the Sincere Watch acquisition and the South Beach Consortium term loan facility
Maples and Calder • Always a strong contender in this category, Maples’ 2009 performance gives them another strong chance of seeing more silverware this year. • Highlights included advising on recent CVC Capital Partners Asia Pacific III LP acquisition of a 98% stake in PT Matahari Department Store Tbk (MDS) from PT Matahari Putra Prima TBK and as Cayman counsel to PT Bumi Resources Tbk, the largest coal mining company in Indonesia, in a US$1.9bn sixyear loan from China Investment Corporation Limited, acting through a subsidiary.
Walkers • A strong 2009 puts Walkers in the mix for a number of awards this year. • Deal highlights include acting as offshore counsel on OCBC’s acquisition of ING’s Asian Private Banking business, Safeena first’s investment and the Sincere Watch acquisition – all of which are finalist deals at this years awards.
Real Estate Law Firm of the Year FINALISTS
Allen & Gledhill • Always a contender in this category, the firm had another strong year despite the financial crisis bringing property transactions to a grinding halt. • Highlights include acting on the acquisition of the Singapore International Convention & Exhibition Centre, Katong Mall and divestment of several buildings, as well as a number of REIT deals including FCT’s acquisition of Alexandra Technopark and the Tianjin Eco-City.
Drew & Napier • Another perennial finalist in this category, the firm took out the category in 2008 and will be hoping to repeat its feat this year after another strong showing in a deflated market.
Lee & Lee • Led by Ow Yong Thian Soo, the firm boasts one of the more established practices in the Lion City • Representative highlights include acting for Morganite Pte Ltd, a joint venture between CapitaLand Residential Limited (35%), Hotel Properties Limited (22.5%), Morgan Stanley Capital (Real Estate) Pte Ltd (22.5%) and Wachovia Development Company (20%), in the purchase of the development known as “Farrer Court” at a record price of S$1.3388bn
Rajah & Tann • A new entrant in this category, the firm was included on the back of strong polling among Singapore-based in-house lawyers. • Soon Choo Hock is said to lead a strong team while Lee Lay See and Gan Hiang Chye are both highly-respected
Rodyk & Davidson • Firm is said to boast one of most well-rounded practices in the country advising on matters across the area from collective sales to real estate finance. • 2009 Transaction highlights include acting for OUE in the sale of the property formally known as The Parisian, 21 Angullia Park, via the sale of OUE’s subsidiary, OUE (Angullia) Pte. Ltd, to China Sonangol Land and Far East Organization in the developer’s project The Greenwood, a 54-unit strata landed housing development.
WongPartnership • A winner in this category in 2009 the firm is once again set to be among the contenders this year after a strong year of dealmaking. • Highlights include acting for Ascendas Funds Management (S) Limited (in its capacity as the manager of Ascendas Real Estate Investment Trust) in its acquisition of DBS Asia Hub, a built-to-suit 9-storey business park facility for S$116 million at Changi Business Park Asian Legal Business ISSUE 10.5
EVENTS | SE Asia Law Awards
SE Asia Shipping Law Firm of the Year FINALISTS
Clyde & Co • A two-time winner in this category the firm boasts highlyregarded experience in the wet and dry aspects of practice • John Champion and Chris Edwards are both highly praised
Holman Fenwick & Willan • A perennial finalist in this category and a winner of this award at the ALB Hong Kong Law Awards in 2009; HFW has invested heavily within the region, with a team that now numbers 28 partners and 52 other fee earners, coupled with a master mariner in each of Melbourne and Shanghai, with two in each of Hong Kong and Singapore
Ince & Co • A winner of this award at last years event, 2009 was another strong year for Ince & Co in Southeast Asia. • The firm advised on the Safeena first investment and was appointed to the ship finance legal panel of a number of international banks including Standard Chartered and DVB Bank.
Stephenson Harwood • Recognised for having a shipping practice that is wellbalanced and strong across the board, 2009 was another year of growth for this firm. • Major highlights include acting for the Bank of China on a fourteen vessel financing for more than $US500m, and on the disputes side acting for shipowners in multi-party arbitrations involving numerous issues regarding diversions, bills of lading and charter party obligations with the amounts in dispute exceeding US$1m
Watson, Farley & Williams • A perennial finalist in this hotly-contested category. • 2009 deal highlights include: acting for the lenders on facilities in excess of US$630m for the refinancing by KOGAS of four LNG carriers on charter to four Korean carriers and SCB, together with ING Bank and Rabobank, in relation to a US$125m loan facility made available to Lamnalco Limited for 15 offshore vessels.
Singapore Shipping Law Firm of the Year FINALISTS
Allen & Gledhill • Boasts one of the largest shipping practices of any large, full-service law firm in Singapore capable of handling dry and wet work. • 2009 major highlights include acting as counsel to Ocean Tankers (Pte) Ltd who entered into a US$70m sale and leaseback of the vessel “Ocean Queen” in a highly structured Shariah-compliant sale and leaseback transaction
Haridass Ho & Partners • A perennial finalist in this category, this specialist shipping practice is believed to be expert in all areas across the practice • Partner Ajaib Haridass was regularly singled out during the polling process as a leading individual in his practise
JTJB • Always a strong contender in this category, this specialist player continues to press the larger firms for the most lucrative of work not only in Singapore but across the region • Founding partner Dato’ Jude Benny is praised for his knowledge and experience and for remaining one of the most hands on of the industry’s elder statesmen
Rajah & Tann • 26-lawyer, 10 partner strong practice is one of the largest in Singapore • Firm handles full gamut of work in the area and is particularly noted for its arbitration and dispute resolution strengths www.legalbusinessonline.com
TS Oon & Bazul • 2009 was another strong year for fast-growing mid-size firm TS Oon & Bazul • Highlights of 2009 include acting for various Shipowners and P&I Clubs on Oil & Gas disputes, collisions and casualties in the region and cargo contamination and shortage claims.
Tax & Trusts Law Firm of the Year FINALISTS
Allen & Gledhill • Always a strong contender in this category and winner of this award last year, the firm’s practice spans the entire breadth of the area • 2009 highlights include advising on numerous high-profile capital markets deals, including the issuance of bonds by Temasek, Singapore Telecommunications Limited, Port of Singapore Authority, Singapore Post Limited and South Beach Consortium Pte Ltd, and on the issuance of Islamic debt securities by the Monetary Authority of Singapore and Majlis Ugama Islam Singapore
Baker & McKenzie. Wong & Leow • One of the stronger practices in the Lion City, the firm’s practice covers ross-border service in tax structuring, transfer pricing, wealth management, trusts and a wide range of tax issues. • 2009 advisory work includes acting for a UK MNC on Singapore tax issues arising from proposed investments by an Asian investor into its Singapore operations
Drew & Napier • Always in contention for this award, the firm’s tax group had another strong year with several notable successes for its clients in disputes with the IRAS. • One of the highlights was the tax discharge obtained for a major logistics company in respect of gains amounting to S$105m derived pursuant to a sale and leaseback transaction. Leading clients include Asia Pacific Breweries Ltd, Credit Suisse, DBS Bank Ltd, and Proctor & Gamble Asia
KhattarWong • 2009 was another solid year for the firm in Singapore • Head of Department Leon Kwong Wing comes highly recommended for defending taxpayers in audit and investigation cases, pursuing objections against Revenue assessments and valuations, and acting as counsel in hearings at the Review Boards and in the Courts.
WongPartnership • A regular finalist in this category, the firm scored several high-profile tax advice mandates over the past year. • Advised Bharti Airtel Limited, as Singapore counsel, on the tax issues in relation to the grant of US$7.5bn from a consortium of lenders to Bharti Airtel International (Netherlands) B.V. (the “Company”) and Bharti International (Singapore) Pte. Limited, in connection with the acquisition by the Company of the entire issued share capital of Zain Africa B.V.
India Deal Firm of the Year FINALISTS
Amarchand & Mangaldas & Suresh A. Shroff • A winner of this award in 2009, the firm will once again be in the mix after a strong 12 months on the deal front • Notable matters include acting on Cairn India’s US$1.6bn bond offering and NHPC’s US$1.3bn public offering.
Khaitan & Co • One of India’s oldest law firm had a solid 2009 • Noteworthy transactions include, advising Hospira Inc, USA in its acquisition of the injectable pharmaceutical business of Orchid Chemicals and Pharmaceuticals, the Blackstone group on acquisition of a majority stake in CMS Computers India Limited and Bahrain Telecommunications in respect of its acquisition of 42.7% shareholding in S Tel Limited
Luthra & Luthra • A perennial finalist in this category, the firm’s strong 2009 was capped off when it was ranked first in the world in Dealogic’s Global review of Global PFI/PPP Deals for 2009
Talwar Thakore & Associates • 2009 was a strong year for Linklaters’ Indian ally • The firm scored mandates on the sale of Satyam Computer Services Limited to Tech Mahindra for approximately INR 2889 crores; Novartis AG’s acquisition of a substantial stake in Novartis India Limited and Axis Bank Ltd’s simultaneous GDR/ QIP issue.
Trilegal • A new entrant in this category, the firm, which enjoys a ‘best friends’ agreement with Allen & Overy, had another strong year and will be among the contenders to take out the award
Indonesia Deal Firm of the Year FINALISTS
Ali Budiardjo, Nugroho & Reksodiputro • A perennial finalist in this category, the firm acted on two finalist deals this year including Northstar Pacific - Delta Buma transaction and Perusahaan Listrik Negara Fast Track Programme project financing
Hadiputranto, Hadinoto & Partners • One of the most formidable players in the Indonesian legal services arena, the Baker & McKenzie member firm has been nominated for awards in no less than 10 categories at this years awards.
Lubis Ganie Surowidjojo • A strong year sees this firm among the favourites for this award • Acted on Adaro Indonesia’s US$800m bond offering and has been heavily involved in the Indonesian bank restructuring program as the primary counsel to the Indonesian Bank Restructuring Agency (IBRA).
Makes & Partners • A strong year for this perennial finalist in which it landed mandates on HSBC’s acquisition of Bank Ekonomi and the RBS Asia’s business banking disposal
Melli Darsa & Co • A firm that always polls strongly throughout the research process, Melli Darsa & Co was involved in many of the countries most high-profile deals of 2009 including the acquisition by Indika Energy of 81.95% shares of Petrosea, the Northstar Pacific - Delta - Buma transaction and the the global restructuring of Delphi International.
SSEK • Another regular finalist in this category, the firm’s strong showing in 2009 has solidified its position as one of the nation’s leading corporate law firms
Malaysia Deal Firm of the Year
AZB & Partners
FINALISTS
• Another strong year for Clifford Chance’s Indian ‘best friend’ will see it in contention to take out this award • Was one of the advisors for the failed deal between Bharti Telecom and South Africa’s MTN
Adnan Sundra & Low
J Sagar & Associates • DLA Piper’s ‘preferred’ firm in India is a perennial finalist in this category • Worked on two finalists deals including Aircel Indian Telecom’s infrastructure project financing and Deutsche Bank Lodha investment restructuring
• The firm capped off a strong year by winning a role on Maxis’ blockbusting US$3.3 bn Malaysian IPO.
Azmi & Associates • 2009 was a fine year for the firm having top Mergermarket’s league table of legal advisors to Malayisan M&A • The firm acted on the Safeena first investment which is a finalist at this years awards
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EVENTS | SE Asia Law Awards >>
Kadir, Andri & Partners • 2009 was a strong year for the firm despite the financial crisis. • The firm acted on a number of finalist deals including the US$3.3bn Maxis IPO, and the Petronas Jumbo Sukuk
Shearn Delamore • A busy year for one of the oldest firms in the country which saw it land roles on a number of deals including acting for Public Bank Berhad in its long term strategic alliance agreement with ING
Chandler & Thong-Ek
Shook Lin & Bok
• Always a strong performer in this category, the firm has registered another good year having worked on six of the finalist deals at this years awards.
• A perennial finalist in this category, the firm acted on two finalist deals this year: the Northstar Pacific - Delta - Buma transaction and Suntec REIT refinancing.
Skrine • Firm’s banking practice advised on an RM800m facility from the government to finance a project in Malaysia for one of the world’s leading manufacturers in 2009 • Theresa Chong, Chen Kah Leng, Philip Chan and Goh Kuan Hock are all highly recommended
Zul Rafique & partners • A perennial finalist and winner of this category in 2005 • Acted on three finalist deals this year including CIMBStandard Islamic Infrastructure Fund, Maxis IPO and the Petronas Jumbo sukuk
Philippines Deal Firm of the Year FINALISTS
ACCRA Law • Always a contender in this category, the firm’s counts a number of the country’s top companies as regular clients
Picazo Buyco Tan Fider & Santos • A new entrant in this category this category, the firm has certainly punched above its weight in 2009 • Deal highlights include acting on San Miguel Brewery’s mega bond offering, advising on the common shares follow-on offering of Metro Pacific Investments Corporation, and served as was counsel to consortium that won the bid for the US$3.95bn privatization of the National Transmission Corporation (National Grid Corporation of the Philippines)
Quisumbing Torres • Baker & McKenzie member firm has had another strong year in the transactional space having worked for a number of foreign and local clients
Romulo Mabanta • A winner in this category in 2009 and a perennial finalist • Representative highlights include acting for the PSALM in respect of a new cash exchange offer
SyCip Salazar Hernandez & Gatmaitan • Another perennial finalist and a winner in this category in 2008 the firm had another strong year advising on three finalist deals including AIG Asia’s consumer finance business disposition; Royal Bank of Scotland Asia banking business disposal and the OCBC - ING Bank Asian Private banking acquisition.
Thailand Deal Firm of the Year FINALISTS
Allen & Overy • Strong year for the magic circle firm in the Kingdom • Firm acted on the acquisition of Shell’s Solvents Business in Thailand and Vietnam and advised Thai Oil Public Company Limited on a US$120m purchase of 80.52% of Sak Chaisidhi Company Limited’s shares from Shell Overseas Investment B.V. and Pattanakij Chemical Co., Ltd. and the purchase of a solvent distribution and marketing business from The Shell Company of Thailand.
Baker & McKenzie • A perennial finalist in this category and a winner in 2008 and 2009 the firm has had another successful year • Deals include acting in the acquisition of shares in Siam City Bank by Thanachart Bank and providing English and
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Thai law counsel to the Bank of Tokyo Mitsubishi UFJ., Ltd., Sumitomo Mitsui Banking Corporation and Mizuho Corporate Bank Ltd. in connection with a USD 300 million term loan agreement made with PTT Public Company Limited “PTT”. • This M&A and FDI-specialist firm has had another strong year to back up its finalist placing in 2008 and 2009
Clifford Chance
Vietnam Deal Firm of the Year
acted on such deals as the US$3.3bn IPO of Maxis, Bumi Resources’ US$375m Convertible Bond and the Republic of Indonesia’s US $650m global sukuk (Best Islamic Financing, FinanceAsia Awards 2009).
Lovells Lee & Lee – James Harris • Is the managing partner of Lovells Lee & Lee in Singapore as well as head of Lovells’ projects practice for South East Asia and Lovells’ Asia Infrastructure Group. • Recognised as a leading project finance lawyer by many in the industry, he has led teams in successfully completing many award-winning projects in the region such as US$4.4bn Resorts World at Sentosa; S$661.4m guarantee project financing of a 300mm wafer fabrication plant in Singapore supported by the Economic Development Board and Singapore’s first privately owned and operated waste incineration plant (Fifth Incineration Plant).
FINALISTS
Rodyk & Davidson – Helen Yeo
Allen Arthur & Robinson
• Under Yeo’s leadership the firm has grown to rival the position of the nation’s ‘big four’ firms. • It was the first foreign law firm to be granted a license to open an office in China and maintains a strong network of alliances with local law firms throughout Southeast Asia. • Under Yeo’s leadership, partners in the firm undertook major projects such as Wuxi-Singapore Industrial Park (China), Vietnam-Singapore Industrial Park (Vietnam), Sanlin Township project (China) and Raffles City project (China).
• A winner in this category in 2008, the firm had another solid year in which it acted for Commonwealth Bank of Australia on its agreement to invest in VIB Bank and continues to act for several landmark Vietnam infrastructure projects, including the Vung Ang II coal-fired power plant, the Nghi Son Refinery & Petrochemical project, and Gamuda’s urban development in Hanoi.
Baker & McKenzie • A finalist in this category in 2008 and 2009 • The firm is lead legal adviser on the complex three country transactions involving ASX-listed Origin Energy acquiring an interest in a diverse South East Asia oil exploration portfolio held by LSE-listed Salamander Energy PLC.
Freshfields Bruckhaus Deringer • A finalist in this category in 2008 and 2009 • Acted on some of the country’s most high-profile deals of 2009 including AES Corporation on the US$2.1m development and financing of the 1200MW coal-fired Mong Duong 2 power plant and ANZ on the US$550m acquisition by ANZ of ABN AMRO Bank N.V.’s business in Vietnam as part of ANZ’s acquisition of RBS’s businesses in Asia.
VILAF • A regular finalist and a winner of this category in 2009, the firm has a good chance of defending its crown this year after another strong year • Acted on Vincom’s US$100m convertible bond offering
YKVN • A perennial finalist in this category and a winner in 2005, the firm acted on a number of high-profile and groundbreaking deals over the past 12 months. • Acted on Vincom’s US$100m convertible bond offering
Managing Partner of the Year FINALISTS
Allen & Overy – Kenneth Aboud • Instrumental in the firm achieving its Qualifying Foreign Law Practice (QFLP) license in late 2009, A&O’s headcount has increased under Aboud’s leadership from 32 to 48 lawyers. • Among the high-profile names to have come on board in this period were Singapore lawyers Lock Yin Mei, Kenny Kwan and Yeoh Lian Chuan while Cerintha Chia joined late December 2009 to head its Singapore law Banking practice. Andrew Battisson arrived in October 2009 to head-up the firm’s international arbitration practice, while growth of its International Capital markets practice is also foreshadowed. • Also regarded as one of the more active managing partners on the deal side, continuing to lead many of the firm’s highprofile cross-border deals of the last twelve months.
Linklaters Allen & Gledhill – Kevin Wong • Kevin Wong has been Managing Partner of Linklaters Allen & Gledhill for seven out of the ten years that the two firms have been in a joint law venture in Singapore. • During this time, the JLV has gone from strength to strength, having substantially increased their footprint in Singapore and throughout Southeast Asia. • Wong is also head of the firm’s Capital Markets and has
Stephenson Harwood – Martin Green • Has been at the helm of the firm in Singapore for the last 14 years and has grown it from a one partner, one practice firm to a 9 partner, 13 associate group advising on a wide swath of areas including all aspects of shipping, oil& gas, insurance and aviation and dispute resolution. • The firm has planned for further expansion later this year as it looks to repeat its 2009 feat of being named as one of Asia’s fastest growing firms.
Watson, Farley & Williams – Chris Lowe • Under Lowe’s guidance, the firm has both expanded cemented and grown its presence in Singapore. • Lowe is also continuing his efforts to expand the Singapore team and plans to fortify the office’s presence in the region through an expansion of the project and structured finance group and focus on the aviation sector and the continuing recruitment drive of the arbitration/litigation group.
WongPartnership – Dilhan Pillay • Dilhan Pillay’s leadership has seen the firm transformed into one of the largest law firms in the Lion City with a footprint that extends to mainland China and the Middle East. • Led the firm’s he recent restructuring initiatives which finetuned the firm’s regional strategy. • These initiatives are also part of Dilhan’s succession plan, where he sees that involving a younger generation of lawyers in the strategic development of the Firm, even beyond the level looked at for succession, empowers and develops them into leaders of the future. • Dilhan still maintains a busy corporate practice, having acted on the CapitaMalls Asia IPO and ATIC’s acquisition of Chartered Semiconductor Manufacturing
International Deal Firm of the Year FINALISTS
• Allen & Overy • Baker & McKenzie • Clifford Chance • Davis Polk & Wardwell • Latham & Watkins • Linklaters • Lovells • Milbank • Shearman & Sterling
Singapore Deal Firm of the Year FINALISTS
• Allen & Gledhill • Drew & Napier • Rajah & Tann • Rodyk & Davidson • Stamford Law Corporation • WongPartnership Asian Legal Business ISSUE 10.5
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Feature | Australian firms in Asia >>
Australians in Asia niche play to the north Asia has been a top priority for Australia’s best law firms for the past decade, but 2010 is seeing new expansion. Blake Dawson has just set up in Tokyo, Clayton Utz is opening in Hong Kong, and Minter Ellison is eyeing Beijing. ALB talks to Australia’s top law firms about new openings and their strategy for the region. By Alice Yan
E
ver since moving into Asia in the 1980s, Australian law firms have pursued aggressive growth strategies in the region. This year, however, things are really heating up, with three new office openings scheduled for 2010. And it is now common market conjecture that the underlying motivation behind the recent move into Australia by some UK firms was really targeted at Asia. These new developments are undoubtedly an extension of law firms’ long-term growth strategies for the Asia-Pacific region. Yet their similar timing is not mere coincidence; it reflects a common optimism towards post-GFC Asia.
Asia in 2010 While the Asian region has always been rich in opportunity, post-GFC Asia offers some ‘once-in-a-global economic cycle’ opportunities. “The financial crisis has shifted the balance of East and West as far as the global economy goes,” says Allens Arthur Robinson’s head of greater China M&A, Campbell Davidson. He says that the GFC has accelerated, in particular, China’s political and economic ascendancy. “It has rushed China into a role we may have expected from it 20-30 years down the track. This creates enormous opportunities to provide the corresponding legal infrastructure to keep up to pace with these accelerated financial leaps.” Asia’s relative immunity to the global slump has increased its respective economic and political importance.
58
Clayton Utz’s managing partner for litigation, Stuart Clark, says India also weathered the financial crisis well and foresees enormous project investment opportunities from the country, both internally and offshore. Australian lawyers in Asia forecast a promising 2010 ahead in Asia. “There was a small hiccup in investment, but Asia came out of the GFC not burdened by the same level of debt as the rest of the world,” Clark says. “Once the shackles of the GFC are shaken off and investors realise the prospect of a ‘double dip’ is unlikely, development and infrastructure projects and construction work will really pick up, with a spill over into dispute resolution. There is a clear way forward with Stuart Clark Clayton Utz real opportunities.” Australian law firms expect to capitalise on the growing Asian market, predicting a greater share of its outbound flows going into this home country. “Australia is now the 10th largest economy in the world,” Blake Dawson partner Ian Williams says. “Our domestic market has become an attractive home for investment in its own right.” He says energy & resources will remain a natural focus for Asiaoutbound investment into Australia, but he also foresees investment opportunities in non-traditional areas arising there. “We’re seeing a lot more interest from Asia in areas like foodstuffs, consumer products and financial services, in particular
securities law,” he says. Blake Dawson tax partner Duncan Baxter says that Australia’s economy came out of the global downturn viewed as a more attractive Ian Williams home for investment Blake Dawson capital, especially for more cautious investors in Asia. In particular, outbound investment from China that previously went to the US may now be redirected to Australia. “Our clients in Asia are moving away from the traditional model of appointing distributors and instead taking market shares in leading Australia companies. This creates M&A work,” Williams says.
New offices Leading Australian firms are strikingly different in their motives for opening, their locations across Asia and their practice focuses. While Australian law firms struggle for distinction in their saturated home market, the strategic approaches and targets each has adopted in the broader Asian marketplace for legal services are fairly unique. Clayton Utz opened its first office in Asia this April, with the move onshore
►► breakdown of asia-focused revenues 15 12 9 6 3 0
10% Blake Dawson’s revenue made up over 10% of overall revenue, growing by around 25% a year
15% Contribution of Mallesons Stephen Jaques’ Asia practices to overall firm revenue
Asian Legal Business ISSUE 10.5
Feature | Australian firms in Asia >>
departing from the ‘fly-in-fly out’ model it had faithfully defended for the past two decades while its major competitors were setting up offices across Asia. But the big question is why go onshore now? Clark says that opening a physical office formalises the position that the firm has already had for a long time – serving top-quality premium clients with a strong fly-in-fly-out team for years, and with an established reputation in the region. “We’ve been waiting for the right opportunity to
to Mallesons, but says it is with a very different intention. “We are not hoping to set up a full-service office in Hong Kong,” Clark says. “We aim to play to our strengths and concentrates on those areas.” Clayton Utz’s Hong Kong office will focus on the firms’ two core strengths – construction and major projects – and dispute resolution and arbitration, though he says expansion into other areas hasn’t been ruled out.
“The financial crisis has shifted the balance of East and West as far as the global economy goes” take the next step,” Clark says. Clayton Utz has formed a local alliance with Haley & Co, to be headed up by founder Glenn Haley. He has had longstanding ties with Clayton Utz and the firm’s partner Colin Dodd, who has been based in Hong Kong for a number of years. “This was a unique opportunity in Hong Kong where we already have pre-existing work and partners with credibility, reputation and profile,” Clark says. Clayton Utz’s move resembles how Mallesons Stephen Jaques first entered the Asian market fully years before Mallesons, by setting up a base in Hong Kong in alliance with Denton Hall and Burgin. Clark acknowledges that the firm has adopted a similar approach
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Campbell Davidson
Allens Arthur Robinson
“There’s little doubt Clayton Utz has the strongest dispute resolution team in Australia. We’ve also accumulated substantial experience in project work
in the region, including water projects in Indonesia and wind farms and power stations across Asia.” Blake Dawson has also been on the move, but with different targets in sight. Shortly after opening in Singapore in 2009, the firm opened another new office in Tokyo this April, earning the distinction of being the first Australian law firm to set up a base in Japan. Williams says the Tokyo opening was an extension of its long-term strategic focus in Japan. “We decided to make Japan a growth priority 15 years ago, and the firm now has the largest – and leading – Japanese practice in Australia.” He says that currently, a large percentage (about 5%) of the firm’s overall client base in Australia, Port Moresby and Jakarta are Japanese, so opening in Tokyo cements the firm’s relationship-based strategy for Asia. “We want to be located where our
►► Strategies of on-shore firms The four firms that moved onshore into Asia first have very different strategic focuses in the region: Firm
Mallesons Stephen Jaques
Allens Arthur Robinson
Blake Dawson
Minter Ellison
Strategy
Mallesons Stephen Jaques clearly has the biggest Asia footprint, but demonstrates a North Asia bias, serviced largely by its Hong Kong office where its critical mass in Asia is based
Allens Arthur Robinson has the broadest reach across Asia, with an unparalleled number of offices scattered throughout the region. It is also more active in the mainland, being the first Australian firm in China to establish three offices and the first firm licensed to work on IP matters
Blake Dawson’s offices follow the flows of capital, putting a long-term strategic focus on Japan, Singapore and China. The firm has made a strategic decision not to target Hong Kong, seeing it as a place where money flows through. “We are interested in being where the assets are,” Blake Dawson partner Michael Wadley says
Minter Ellison’s China office serves as an effective marketing tool. The Shanghai base is a small representative office on the ground, which acts as ‘eyes and ears’ by building contacts and bringing work home
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Feature | Australian firms in Asia >>
►► Targeting Asia using an Australian base The defection of 16 Australian partners from a major firm to a UK entrant stirred a scandal in the Australia market that distracts from the real target. It is popular market sentiment that Allen & Overy’s entrance onto Australian soil was not motivated by the small – and already saturated – domestic market, but rather is a clever ploy to increase market share and presence in Asia by leveraging off an Australian base. So far the Asian practices of Australian firms have enjoyed natural advantages over their UK competitors, simply by being ‘Australian’. John Curtis, a partner with Freehills explains that Australian firms are the natural choice for Asian- outbound work into Australia. This is a substantial amount when you consider that Chinese investment into Australia alone amounts to $90 billion. Australian firms are also the top pick for work within Asia, have unparalleled regional expertise in the region. But local expertise and reputation are attributed as much to the Australian firm brand as to their top people. So when the UK firms start pinching their best talent, they are eroding the local firms’ main competitive edge. Yet most Australian top-tiers continue to shrug away the threat with determined nonchalance. Mallesons Stephen Jaques partner Robert Milliner says that “Magic Circle isn’t a magic bullet in this part of the world”. And Stuart Clark from Clayton Utz says the idea that Allen &7 Overy will service its Asian needs with newly-acquired Australian resources is not a viable model. “Australia is still a nine-hour flight away from most of Asia,” he says. Ian Williams from Blake Dawson claims that any UK set-ups in Australia do not, by a long way, have the spread and depth of expertise in the region that the leading Australian firms have. No doubt, they do not have this just yet. Williams acknowledges that “the UK entrant into the Australian market is a fundamental inflection, [a] point of change. It marks the shift in the Australian legal market from a domestic legal market to an international legal market in the next two-three years.” Consequently, Australian firms may have to extend and move beyond their natural competitive advantages to effectively differentiate themselves in Asia.
clients are. We already have five partners living and working in Japan. Opening this office was the logical next step,” he says. Similarly, Blake Dawson opened its Singapore office last year to follow the flow of capital. “The regional headquarters of multinational corporations and the investment division of our major clients are based
60
“When you get to a certain point, an office on the ground can do things you need that a fly-in-fly-out model cannot” in Singapore,” Williams says. “A lot of the investment into India also goes via Singapore.” He says the firm would be looking at Korea as the next logical market for opening an office after liberalisation allows it, but Minter Ellison, on the other hand, is awaiting approval to open a new office in Beijing.
Onshore versus offshore Clayton Utz was the last top-tier firm to defect from the offshore model. Its decision to open onshore confirms the consensus reached amongst the top Australian firms over time that there are unparalleled advantages of being onshore. The most obvious one is presence. “Being able to give real-time advice on the ground when it is needed is a real attraction to our clients,” says Minter Ellison’s international Mark Green Minter Ellison managing partner Mark Green. As business in China is relationship-driven, having an onshore presence also means better client building opportunities and marketing. Bonds will surely form faster with someone over hotpot than from four thousand miles away! Allens Arthur Robinson’s Davidson says relationships take a long time to develop and requires lawyers to be on the ground, mixing with locals. “You need a significant team of PRC lawyers, born and bred and educated in the PRC, with their own contacts and friends working in local firms and government,” Davidson says. Williams says Blake Dawson’s physical presence sends a signal to local lawyers. “It shows we have a real commitment to serving their market,” he says. Yet Corrs Chambers Westgarth’s Sydney partner Anthony Latimer says that physical presence makes little difference, as long as Australian-based staff Anthony Latimer can make themselves Corrs Chambers Westgarth available and be mobile.
Stuart Clark
Clayton Utz
“Not being across the road means we cannot be at their office in half an hour, but we can hop on a flight and be there in eight hours,” he explains. Corrs is one remaining firm without an Asian office, preferring to use six partners across its Melbourne, Sydney, Perth and Brisbane offices dedicated to China-related work. Latimer says the firm manages client relationships on par with onshore firms, using a combination of modern technology, strong language skills in Australia and senior partners who have spent most of their lives in China. But Minter Ellison’s Green insists that this is no substitute for personal interaction. “When you are in the same room, you can read body language across the table that you can never get from a telephone conversation over a screen,” he says. Even Clayton Utz succumbed to the need for opening an Asian office, just waiting for the right opportunity. “When you get to a certain point, an office on the ground can do things you need that a fly-in-fly-out model cannot,” says Clark. Those firms which remain offshore in the region continue to claim they are not at any disadvantage, but closer examination of the circumstances show they’ve not moved onshore because they lacked the capacity to – or acted too late. Most Australian mid-tier firms like Corrs Chambers Westgarth will fall into the first category, but Freehills is in the second. The firm was late jumping onto the Asia bandwagon, and decided in 2004 to fast-track its cultural learning curve by forming an alliance with local law firm TransAsia in Singapore. As Australia plays more of a role in the international market its law firms will increasingly struggle with the fundamental operating decision about how ‘international’ they want to (and can afford to) become. “They must choose between staying a purely domestic business or regional business. Going regional requires significant investment financially and in HR and management,” Williams says. “Only the committed will go ahead.” ALB Asian Legal Business ISSUE 10.5
Feature | Australian firms in Asia >>
www.legalbusinessonline.com
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Feature | Islamic finance >>
ALB’s Leading Islamic finance law firms: Asia Law firms are moving to new and emerging markets to not only target, but be part of, the unstoppable growth of Islamic finance structures. By Rashida Yosufzai
S
ince modern-day Islamic finance emerged as a model in the Middle East in the 1970s, its expansion has been rapid. The IMF estimates that Islamic finance assets have grown by 10% every year in the last decade. That growth – making Islamic finance one of the fastest-growing sectors of the global financial market – has been achieved in a relatively short time. Yet it’s that very pace of growth which has the legal world worried. In December 2009, when UAE property firm Nakheel faced defaulting on repayment of its sukuk (Islamic
bonds), worldwide headlines claimed that the market would shun Islamic finance as a banking system. For many observers, and not only in the legal world, it seemed that the growth story might end. But lawyers on the frontline argue that far from Islamic finance coming to an end, it’s really at the very beginning. In keeping with the market, this model carves out a potentially lucrative practice area. Now, and for those venturing into markets traditionally perceived as non-Islamic (in the EU and North Asia), to the surprise of many it is currently growing.
HEADLINE Islamic Finance DEALS – WORLDWIDE: Maxis Berhad IPO US$3.3bn Firm: Linklaters Client: Underwriters Firm: Clifford Chance Client: Maxis Berhad Lead lawyer: Crawford Brickley Firm: Adnan, Sundra & Low Client: Underwriters Firm: Zul Rafique Client: Maxis Communication Berhad
Firm: Kadir Andri & Partners Client: Maxis Berhad Lead lawyers: Samuel Hong, E. Sreesanthan • Malaysia’s biggest mobile phone company, Maxis Berhad, in US$3.3bn IPO on the Bursa Malaysia • Largest Malaysia IPO and Asia in 2009 • Biggest telco public offering seen in Asia-Pacific since 2000
Kuwait Energy Company Shariah financing US$50m Firm: Fulbright & Jaworski Lead lawyers: Andrew Hart, Michael McMillen, David Moroney Client: IFC Firm: Lovells Lead lawyers: Matthew Andrews, Rustum Shah Client: Kuwait Energy Company • Kuwait Energy Company
november 2009 >> 62
MALAYSIA
NOVEMBER 2009 >>
loaned US$50m Shariahcompliant financing from International Finance Corporation towards oil and gas assets exploration • First financing provided by IFC Kuwaiti oil and gas company, represents the dedication of all parties involved to ensure that commercial requirements of this unique class of financing was compatible with the Shariah • Lovells/Fulbright cross-border London/Dubai offices advised on English law and Shariah structuring kuwait
Asian Legal Business ISSUE 10.5
Feature | Islamic finance >>
Islamic finance’s continued ascendancy T
he GFC presented a unique opportunity for “unconventional” banking methods to shine and, by principle, Islamic finance is the very embodiment of unconventional. The model shuns financial risk and interest, and requires tangible assets to back up transactions. Due to this, some argued that the global economy would not have suffered as much had Islamic finance been used instead of conventional banking: it had, in effect, a moral upper hand. In 2007, the total value of sukuk issuances peaked at almost US$35bn. “During the global financial crisis, a number of conventional banks closed down – but at the same time new Islamic banks were opening up all over the world,” says Madzlan Hussain, partner and head of Islamic finance at Malaysian law firm Zaid Ibrahim & Co. However, Islamic finance institutions
GE Capital sukuk US$500m Firm: Conyers Dill & Pearman Lead lawyer: David Cooke Client: GE Capital Firm: Allen & Overy Lead lawyer: Anzal Mohammed Client: GE Capital
(IFIs) were not entirely unexposed to the crisis. Besides Nakheel, three other IFIs restructured debts or had defaulted on their sukuk repayment, starting off with East Cameron Gas (Oct 2008), Investment Dar (May 2009), and Saad Group (June 2009). If sentiment was still soaring then it was firmly grounded by December 2009. The announcement by the conglomerate Dubai World that it would halt repayment of its subsidiary Nakheel’s Islamic bonds, which were due in a matter of weeks, stunned the global market. Because one of Islamic finance’s pillars is for investors to share the issuer’s risk, as opposed to the conventional system of risk-taking, many considered that Islamic finance had limited scope to grow. This presented Islamic finance groups in law firms with a major problem: not only did Nakheel cast a
Firm: Clifford Chance Client: Citi/Goldman Sachs • GE Capital’s offering of sukuk certificates to diversify alternative funding sources • First such offering issued by major US company and first of its type to be used to finance aircraft leasing
www.legalbusinessonline.com
uae
►► MALAYSIA:
• Abdul Rahman & Partners • Adnan, Sundra & Low • Albar & Partners • Azmi & Associates • Hisham Sobri & Kadir • Kadir Andri & Partners • Lee Hishammuddin Allen & Gledhill •Mohamed Rizda & Co • Rajah Darryl & Loh • Shahrizat Rashid & Lee • Shearn Delamore & Co. • Zaid Ibrahim & Co • Zul Rafique & partners
►► INDONESIA:
• Assegaf, Hamzah & Partners • Hadiputranto, Hadinoto & Partners • Hannafiah Ponggawa & Patners • MMIK Law Office • Soebagjo, Jatim & Djarot
►► SINGAPORE:
• Allen & Gledhill • Arfat Selvam Alliance
►► International Law firms- Asia
• Allen & Overy • Clifford Chance • Lovells • Norton Rose
►► Methodology
ALB conducted the extensive research with numerous in-house legal counsels, banking & financial services professionals, industry specialists and private practice lawyers for the last 3 months. Our respondents were asked to nominate Asia’s leading Islamic Finance law firms and lawyers based on their industry reputation and quality of work. Submissions made as part of the ALB Law Awards series were also considered. The Middle East region was excluded from this survey.
Safeena Shariah • Unique Islamic finance • Azmi & Associates shipping investment investment deal for Malaysia’s retained through Ince & Firm: Ince & Co Lead lawyer: Martin Brown Client: Safeena Firm: Azmi & Associates Lead lawyer: Ahmad Lutfi Abdull Mutalip Client: Safeena Firm: MKK Lead lawyer: Craig Heggie Client: Safeena
DECEMBER 2009 >>
ALB’s leading Islamic finance law firms: Asia
MARCH 2010 >>
only Islamic shipping fund, deal structured through deferred purchase and forward lease arrangement • First purchase and forward lease structure (also called an istisna’a-ijarah structure) used by shipping fund • Ince & Co approached by Safeena due to Brown’s prior experience on conventional and Islamic financing deals-
Co, advising on legality/ enforceability of legal documentation and fund structure to meet local law requirements
MALAYSIA
63
Feature | Islamic finance >>
negative light on the growth of Islamic finance, but some looked towards the lawyers’ roles in structuring the Shariah documents. The Nakheel sukuk default was viewed as contributing to weaker investor confidence in Islamic finance, says Oliver Agha, the cofounder of Shariahcompliant law firm Agha & Shamsi. “Certainly, public confidence in a Oliver Agha, system is undermined Agha & Shamsi when widespread defaults suggest a systemic fault, as was the case with the conventional
banking crisis,” he said. But Asiabased Islamic finance lawyers remain confident there will be no fallout from the affair. “Despite the Nakheel event, the interest in Islamic finance is still growing,” says the head of Malaysian firm Azmi & Associates’ Islamic finance practice, Ahmad Lutfi Abdull Mutalip. “The problem was not really because of Islamic finance but because of the credit risk of the issuer, which can occur in any sort of banking method – Islamic or conventional.” So what kind of market do Islamic finance lawyers face now – uncertainty or optimism? “It’s safe to say there’s huge potential for growth in Islamic
finance because it reached the [IMF’s estimated] 10% growth rate in such a short space of time,” says Hussain.
“Certainly, public confidence in a system is undermined when widespread defaults suggest a systemic fault, as was the case with the conventional banking crisis.” Oliver Agha
Agha & Shamsi
IF: not just for the Middle East Old world versus new
M
alaysia and the Middle East have always dominated the global Islamic finance market as a solid source of work for many law firms. Malaysian government investment over the years has created a stable base of clients for law firms – it was on the encouragement of the Malaysian central bank that Asia’s largest lowcost airline, AirAsia, embraced Islamic finance, not only for an aircraft leasing transaction but for a sukuk issue. “We embraced Islamic finance, not only because it was economically feasible but because there was a drive in the last few years to make Kuala Lumpur an Islamic finance hub,” says AirAsia senior counsel, Amir Fazael Zakaria. Last year, the airline won industry plaudits for its US$336m innovative Islamic French-Malaysian lease used to finance eight new aircraft. The year before, the company issued US$158.5m in sukuk to finance its capital expenditures. “There were some hoops and hurdles we had to jump through to make [the 2009 lease] Shariah compliant but the basic structure is still a lease,” explains Zakaria, adding the company’s future embrace of Islamic finance will depend on whether the government will continue to invest in the sector. “Islamic finance will always be an option that AirAsia will be open to, given the right circumstances, if 64
the cost of funding is still competitive, and the government is still providing incentives. We’ve been noted as an entity that actively partakes in Islamic finance in the region and we’re proud of that.” Law firms are continuing to invest in the Middle East region on the back of regional growth in Islamic finance. In January King & Spalding promoted Islamic finance specialist Jawad Ali
to regional managing partner. In February, Denton Wilde Sapte said it wanted to target the Islamic finance market in Bahrain, and launched a local office through an alliance with Hassan Radhi & Associates. The firm had sound rationale for the move – Bahrain is positioning itself as the area’s Islamic finance hub. According to the Governor of its central bank, Bahrain has one of the largest numbers
“Indonesia is a country with a population of almost 300 million and is also untapped for Islamic finance. It is practically unknown there”
Amir Fazael Zakaria
AirAsia Senior Counsel
Asian Legal Business ISSUE 10.5
Feature | Islamic finance >>
of IFIs in the world, providing a solid client base. Hussain says that Malaysia has done a lot of the groundwork that other jurisdictions can replicate without going through the same painstaking experiments. “It will continue to be a leading jurisdiction for Islamic finance, but at the same time you cannot undermine the potential for others to also compete very well in offering the best platform for Islamic finance to take off.” Although Malaysia and the Middle East will continue to dominate much of the market, some hiccups have been felt in both regions. For example, Malaysia’s latest investment proposal, allowing up to five foreign law firms to practice local law (but only on Islamic finance transactions) didn’t exactly receive the same kind of enthusiasm as Singapore’s 2009 license grants. “For many full-service [foreign firms] the value proposition would not be too enticing because they can service Islamic finance from their headquarters anyway,” explains Hussain. “I believe the central bank is looking to revise the proposal because of the [feedback from] international firms – that it’s not a valuable enough proposal to set up in Malaysia –and maybe to allow perhaps a larger practice base.” In the Middle East, law firms looking for work may also be cautious as not all countries have embraced Islamic finance. In Oman, for example, lawyers note there is no Islamic finance industry, let alone work, there. “There is a general perception that Oman does not favour the establishment of Islamic finance institutions. In any event the transaction costs, for example, of real estate sale and leasebacks can be very high,” explains lawyer Taimur Malik, of Muscat-based law firm SALSO. “There is a sector of the private and business community which has an appetite for Shariah-compliant financing or products and there may be a market, but it’s subject to a change in government policy and with real costs to be competitive with conventional financing structures.” In a similar fashion to Zaid Ibrahim, US firm Crowell & Moring made its Middle East debut in April, opening an affiliate office in Egypt by partnering with Cairo-based Hegazy & Associates. www.legalbusinessonline.com
The firm’s motivation was also the rising market for Islamic finance, yet it faces a similar hurdle as others because Islamic finance is still underdeveloped in Egypt. Like in Oman, the government has yet to embrace Islamic finance. Nevertheless, one of the main types of work for Islamic finance practices, sukuk issuance, is growing on the basis of IFIs tapping into new markets. A recent Standard & Poor’s report says “sukuk is attracting issuers from an increasing number of countries and this trend is set to continue. Issuers from more than 20 countries have expressed interest in issuing, or announced their intention to issue, sukuk.” New and emerging markets for Islamic finance – in short, where the work is likely to move – is one of the most pressing issues for law firms worldwide. In a list of ‘“up and coming jurisdictions’, lawyers throw a number of interesting locations into the mix – London, Australia, France, Germany, Malta, the Channel Islands, Japan, Hong Kong, Korea. And the list goes on.
New horizons AirAsia’s Zakaria says that there is a good reason why Malaysia has positioned itself to be the world’s Islamic finance hub – its strategic location within such a large investor base. “Indonesia is a country with a population of almost 300 million, and is also untapped for Islamic finance. It is practically unknown there,” he says. “It’s not just in terms of the aviation industry but for consumer banking. It’s why Malaysia continues to place itself as a hub. We have a head-start since we started taking baby steps almost three decades ago.” Such is Hussain’s faith in the growth of Islamic finance that his firm took a huge investment risk last year to target a virtually absent Islamic finance market in Australia. Zaid Ibrahim partners said they saw local interest while accompanying a trade delegation from Malaysia’s central bank to promote Islamic finance in Australia, so last year it became the first Asian law firm with an Australian operating licence. Partner Lim Kar Han, who will head the Australia practice, admits that while the market in Australia is still in its infancy the firm will be part
►► Top 10 global Islamic bond issuer rankings - 2010 Q1 Pos.
Issuer
Deal value (US$m)
No
%share
1
Danga Capital Bhd
612
1
34.7
2
Dar Al-Arkan Real Estate Development Co
446
1
25.3
3
Khazanah Nasional Bhd
228
1
12.9
4
Saudi Hollandi Bank
193
1
11.0
5
Gamuda Bhd
97
1
5.5
6
Cagamas Bhd
94
1
5.3
7
PT Perusahaan Listrik Negara-PLN
32
1
1.8
8
Sunrise Bhd
29
1
1.7
9
Tradewinds Corp Bhd
15
1
0.9
10
Aeon Co Ltd
1
0.5
9
Source: Dealogic
of the process, helping it grow through education. “It’s a nascent industry which is growing, but there still has to be an education process. The next step for us is a roadshow where we’ll be looking at case studies and how you can bring [products] to the market.” Yet there are only a handful of Australian banks that have shown interest in Islamic finance. A local banker who managed the roll-out of a product for one prominent bank could not comment on the potential for future growth in Australia. Regardless, the Australian government has put considerable thought into using Islamic finance to make the country an Asian financial hub, on the basis that Australia has a larger Muslim population than for example, Hong Kong or Japan. Lim says that Zaid Ibrahim is already working closely with two Australian law firms. “We are working on some [Islamic finance] products at the moment to develop together with the firms,” he said. “It’s very much a collaborative process and we just want to build on those good relationships.” So what else can the firm expect for Islamic finance in Australia? “There are a whole range of Islamic finance products you can tap in Australia, but the best is to [target] the lower hanging fruits first,” says head of Islamic finance Hussain. “There is scope both at the commercial, retail and wholesale funding levels; because the Australian banking industry taps quite significantly into international funding.”
65
Feature | Islamic finance >>
IF lawyers – important future role
I
slamic finance lawyers will face some significant challenges in the next few years, and will play a huge role developing modern legal structures for Shariah-compliant transactions and innovative Islamic finance transactions. “Recent issues opened the eyes of Islamic finance bankers and teams who look to structure deals better so that those kinds of problems can be eliminated in future sukuk issues,” says Azmi & Associates’ Mutalip. “Lawyers [can] now ensure they’re brought in from day one ... so that in the event of a default the transaction structure is foolproof.” What Nakheel and other troubled IFIs did was not only bring Islamic finance into the consciousness of the mainstream market but helped shine a light on some of the difficulties lawyers have faced over the years. It’s not just problems with reconciling different interpretations of Shariah law in each country but how to reconcile Islamic finance product structures within western legal regimes. The Nakheel default, for example, pushed Dubai into developing better bankruptcy laws. In short, Islamic finance’s problems can also create new opportunities and business for lawyers too. Harris Irfan, head of Islamic products at Barclays Capital, says that the role of lawyers is more important now. “Inhouse legal departments are taking their time on Shariah representation and carefully looking at the language of the contract, so no one can say it’s null and void,” Irfan told Reuters in March. “The process already takes time and we’re making it even slower. It’s a shame but this is going to make the industry grow at a slower pace.” But not all in-house lawyers share the same view. Zakaria says there’s only
so much that they have control over. “In-house lawyers really don’t play that much of an active role in the product structuring. Because of the way Islamic finance structures are devised we see the financing once we have [the] term sheet in front of us. It’s not something that we can proactively say ‘let’s look out for these dangers’. Besides, in Asia there is a lot of faith in regional IFIs who have well-established Shariah boards. We don’t see any issues to be worried about on their credibility,” he explains. Another huge source of work for lawyers will be in reconciling Shariah interpretations in various countries. “Since Islamic finance is a global phenomenon, the basic set of corporate
“Since Islamic finance is a global phenomenon, the basic set of corporate laws in each country should at least be ‘talking to each other’, as documents will be applied individually where the contract belongs” laws in each country should at least be ‘talking to each other’, as documents will be applied individually where the contract belongs,” says Mutalip. Oliver Agha says that ensuring IF transactions abide by Shariah and not conventional risk profiles will “generate much work for law firms”. “We’re witnessing many structures that were hurriedly put together with Shariah approvals that have hit serious legal enforceability issues,” he says. “A Shariah approval does not render a transaction enforceable but merely declares the scholar’s view as to its perceived compliance. There is a significant amount of work involved in sorting through issues where the approval deviates from consensus
Abdul Rahman & Partners is established since 1985 and is one of the fastest growing boutique firm in providing premier legal services in Malaysia. Our practice mainly covers Islamic banking and finance, debt capital market and broad area of corporate and commercial, and litigation practices. Our commercially sound legal advice have benefited many banking and corporate institution clients in structuring Islamic facilities on syndicated-related and club deal basis, and even via Sukuk issuance to cater various needs.
66
or results in a structure that has deficiencies under the law of the jurisdiction at question. As more and more such structures come to light, the work for lawyers with comprehensive Shariah knowledge and skills will continue to increase.” Reconciling Shariah principles – perhaps through a global code of practice – is certainly idealistic, and Hussain says it won’t be easy. “Streamlining Shariah interpretations will not be the best way forward, especially since Islamic finance is still in its infancy,” he says. “Innovation and paradigm shifts will need to take place within Shariah law itself, so I don’t think there will be any uniformity taking place in the near
Areas of Expertise: • Asset Finance & Securitisation • Capital market • Corporate Recovery • Corporate & Commercial • Islamic Banking and Finance • Project Finance
Ahmad Lutfi Abdull Mutalip
Azmi & Associates
future.” What’s more, says Hussain, it doesn’t matter whether reform happens or not. “There is an opportunity for law reform to happen but the growth of the industry will not be dependant on it,” he says. “The industry will still move forward because new jurisdictions are very much well positioned to accommodate the growth.” What is certain among lawyers and bankers is that Islamic finance is attracting more attention. Lim says the reason why traditionally non-Islamic nations have embraced the model is that IF is becoming an important part of [the] international finance world. It will compliment and compete with conventional finance, no longer taking a back seat.” he says. ALB
Abdul Rahman & Partners HQ: Level 27, Menara Haw Par, Jalan Sultan Ismail, 50250 Kuala Lumpur, Malaysia Phone: +603 2078 1 888 | Facsimile: +603 2078 1 999 Email: edham@abdulrahman.com.my | info@abdulrahman.com.my www.abdulrahman.com.my Asian Legal Business ISSUE 10.5
MARKETdata DATA| M&A | M&A market >>>>
In association with
M&A TRANSACTIONS AND STATISTICAL ANALYSIS Top 10 Announced Deals - Asia-Pacific (Apr 01, 2010 - Apr 23, 2010) Announcement Date
Target Company
Target/Seller Legal Advisor
Bidder Company
Bidder Legal Advisor
12-Apr-10
Syncrude Canada Limited (9.03% stake)
Advising seller: Osler, Hoskin & Harcourt
China Petroleum & Chemical Corporation
Blake, Cassels & Graydon
7-Apr-10
Daimler AG (3.1% stake)
Freshfields Bruckhaus Deringer
Nissan Motor Company Limited; and Renault SA
Nishimura & Asahi; Sullivan & Cromwell
1-Apr-10
Tong Yang Cement Company Limited (59.2% stake)
16-Apr-10
NAU Country Insurance Company
16-Apr-10
Seller Company
Deal Value (USDm)
ConocoPhillips Company
4,650
1,558
Golden Oil Corporation
Tong Yang Major Corporation
741
QBE Insurance Group Limited
Lightyear Capital LLC
565
345-MW San Roque Multipurpose Hydroelectric Power Project
San Miguel Corporation
Power Sector Assets & Liabilities Management Corporation
450
6-Apr-10
Jushi Group Company Limited (49% stake)
China Fiberglass Company Limited
China National Building Material Company Limited; Hony Capital; Surest Finance Limited; and ZhenShi Holding Group Company Limited
430
18-Apr-10
Sul Americana de Metais S.A
Honbridge Holdings Limited
Votorantim Novos Negocios Ltda
390
9-Apr-10
Atlas Energy Resources (Marcellus Shale) (40% stake)
6-apr-10
15-Apr-10
Notes:
Advising seller: Sullivan & Cromwell
Advising seller: Jones Day; Ledgewood Law Firm; Wachtell, Lipton, Rosen & Katz
King & Wood
Reliance Industries Limited
Vinson & Elkins
Atlas Energy Inc
339
HNA Airport Holding (Group) Company Limited (54.5% stake)
Hainan Meilan International Airport Company Limited
Grandall Legal Group
HNA Group Company Limited; Kingward Investment Limited
322
PT Carrefour Indonesia (40% stake)
PT Trans Corpora
Carrefour SA
300
Top deals table includes lapsed and withdrawn bids, and is based on geography of either target, bidder or seller company being Asia-Pacific•Quarterly trend graph excludes lapsed and withdrawn bids, and is based on dominant geography of target only being Asia-Pacific•League tables are based on geography of either target, bidder or seller company being Asia-Pacific. League tables of legal advisors include lapsed and withdrawn bids, while league tables of financial advisors exclude lapsed and withdrawn bids. League tables are ranked by value • Statistics includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from statistics include property transactions and restructurings where the ultimate shareholders’ interests are not changed.
League Table of Legal Advisors to Asia-Pacific (ex-Japan) M&A (Jan 01, 2010 - Apr 23, 2010) Rank
House
League Table of Financial Advisors to Asia-Pacific (ex-Japan) M&A (Jan 01, 2010 - Apr 23, 2010)
Value (USDm)
Deal Count
Rank
Value (USDm)
Deal Count
1
Herbert Smith/Gleiss Lutz/Stibbe
48,657
3
1
Deutsche Bank
53,846
11
2
Slaughter and May
38,683
4
2
Goldman Sachs
49,160
14
3
Sullivan & Cromwell
36,077
4
3
HSBC
46,628
4
4
Cleary Gottlieb Steen & Hamilton
35,950
3
4
Citigroup
43,282
11
5
Norton Rose
35,896
9
5
Credit Suisse
42,289
8
6
Simpson Thacher & Bartlett
35,824
4
6
Morgan Stanley
36,831
11
7=
Cravath Swaine & Moore
35,500
1
7=
Blackstone
35,500
1
7=
Debevoise & Plimpton
35,500
1
7=
JPMorgan Cazenove
35,500
1
7=
Weil Gotshal & Manges
35,500
1
7=
Lazard
35,500
1
10
Davis Polk & Wardwell
29,211
5
10
UBS Investment Bank
23,760
15
Based on announced deals, including lapsed and withdrawn bids, from 1 January 2010 to 23 April 2010
House
Based on announced deals, excluding lapsed and withdrawn bids, from 1 January 2010 to 23 April 2010
Asia-Pacific M&A Activity - Quarterly Trends 900
200,000 180,000
800
Value (USDm) Volume
140,000
700 600
120,000
500
100,000
400
80,000
300
60,000
200
40,000
100
20,000 0
68
Number of deals
Value (USDm)
160,000
Q1 03
Q2 03
Q3 03
Q4 03
Q1 04
Q2 04
Q3 04
Q4 04
Q1 05
Q2 05
Q3 05
Q4 05
Q1 06
Q2 06
Q3 06
Q4 06
Q1 07
Q2 07
Q3 07
Q4 07
Q1 08
Q2 08
Q3 08
Q4 08
Q1 09
Q2 09
Q3 09
Q4 09
Q1 10
Q2 10*
0
AsianLegal LegalBusiness BusinessISSUE ISSUE 10.4 Asian 10.5
MARKET DATA | |M&A M&A>> >> market data
In association with
Notes:
League tables are based on geography of either target, bidder or seller company. League tables of legal advisors include lapsed and withdrawn bids, while league tables of financial advisors exclude lapsed and withdrawn bids. League tables are ranked by value•Statistics includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from statistics include property transactions and restructurings where the ultimate shareholders’ interests are not changed.•Q2 10* = 1 April 2010 to 23 April 2010
League Table of Legal Advisors to Greater China M&A (Jan 01, 2010 - Apr 23, 2010) Rank
House
League Table of Financial Advisors to Greater China M&A (Jan 01, 2010 - Apr 23, 2010)
Value (USDm)
Deal Count
Rank
Value (USDm)
Deal Count
1
Slaughter and May
38,683
4
1
Goldman Sachs
House
44,238
4
2
Herbert Smith/Gleiss Lutz/Stibbe
37,957
2
2
Deutsche Bank
41,291
6
3
Cleary Gottlieb Steen & Hamilton
35,950
3
3
Credit Suisse
40,657
5
4
Simpson Thacher & Bartlett
35,744
3
4
Citigroup
37,492
6
5
Norton Rose
35,624
2
5=
Blackstone
35,500
1
6
Sullivan & Cromwell
35,500
2
5=
HSBC
35,500
1
7=
Cravath Swaine & Moore
35,500
1
5=
JPMorgan Cazenove
35,500
1
7=
Debevoise & Plimpton
35,500
1
5=
Lazard
35,500
1
7=
Weil Gotshal & Manges
35,500
1
9
Morgan Stanley
31,252
7
10
Davis Polk & Wardwell
28,400
1
10
China International Capital
8,164
6
Based on geography of either target, bidder or seller company being China, Hong Kong, Macau or Taiwan
League Table of Legal Advisors to Japanese M&A (Jan 01, 2010 - Apr 23, 2010) Rank
House
League Table of Financial Advisors to Japanese M&A (Jan 01, 2010 - Apr 23, 2010)
Value (USDm)
Deal Count
Rank
Value (USDm)
Deal Count
1
Mori Hamada & Matsumoto
7,864
15
1
House Nomura Holdings
7,710
19
2
Skadden Arps Slate Meagher & Flom
6,885
3
2
JPMorgan
4,938
4
3
Nishimura & Asahi
5,691
10
3
UBS Investment Bank
4,014
1
4
Gibson Dunn & Crutcher
4,611
2
4
Citigroup
3,795
3
5
Latham & Watkins
4,014
1
5
Goldman Sachs
3,671
4
6
Anderson Mori & Tomotsune
3,560
9
6
Centerview Partners
2,871
1
7
Nagashima Ohno & Tsunematsu
3,397
10
7
Bank of America Merrill Lynch
1,740
1
8
Shearman & Sterling
3,333
3
8
Deutsche Bank
1,226
1
9
Morrison & Foerster
2,871
2
9
Greenhill
1,226
1
10
Dewey & LeBoeuf
2,871
1
10
Celfin Capital
924
1
Value (USDm)
Deal Count
Rank
Based on geography of either target, bidder or seller company being Japan
League Table of Legal Advisors to Indian M&A (Jan 01, 2010 - Apr 23, 2010) Rank
House
League Table of Financial Advisors to Indian M&A (Jan 01, 2010 - Apr 23, 2010) Value (USDm)
Deal Count
1
AZB & Partners
13,407
18
1
House Barclays Capital
13,311
4
2
Allen & Overy
10,761
3
2
Standard Chartered
13,097
4
3=
Herbert Smith/Gleiss Lutz/Stibbe
10,700
1
3
UBS Investment Bank
11,115
3
3=
Linklaters
10,700
1
4
HSBC
10,820
2
5
Amarchand & Mangaldas & Suresh A Shroff
1,935
4
5=
BNP Paribas
10,700
1
6
Wadia Ghandy
1,840
1
5=
Global Investment House KSCC
10,700
1
7=
Crawford Bayley
1,184
1
5=
State Bank of India
10,700
1
7=
Tozzini Freire Teixeira E Silva Advogados
1,184
1
8
Citigroup
2,130
2
7=
Veirano Advogados
1,184
1
9=
Nomura Holdings
1,840
1
10
WongPartnership
685
1
9=
Rothschild
1,840
1
Based on geography of either target, bidder or seller company being India
League Table of Legal Advisors to Southeast Asian M&A (Jan 01, 2010 - Apr 23, 2010)
League Table of Financial Advisors to Southeast Asian M&A (Jan 01, 2010 - Apr 23, 2010) Value (USDm)
Deal Count
1
Weerawong, Chinnavat & Peangpanor
3367
2
1
UBS Investment Bank
4,002
3
2
Kadir, Andri & Partners
2649
1
2
CIMB Group
2,894
7
3
Allen & Gledhill
2098
8
3
Public Investment Bank
2,885
2
4
WongPartnership
1995
10
4
Barclays Capital
2,873
2
5=
Amarchand & Mangaldas & Suresh A Shroff
1840
1
5
RHB Investment Bank
2,700
2
5=
Wadia Ghandy
1840
1
6
JPMorgan
2,649
2
7
Hunton & Williams
1258
1
7
Standard Chartered
2,617
2
8
Clifford Chance
1237
3
8
Morgan Stanley
2,194
2
9
Hughes Hubbard & Reed
1170
1
9
Citigroup
2,148
2
10
Makes & Partners
777
1
10
Deutsche Bank
2,011
3
Rank
House
Value (USDm)
Deal Count
Rank
House
Based on geography of either target, bidder or seller company being Southeast Asia
www.legalbusinessonline.com www.legalbusinessonline.com
69
market data | capital markets >>
Equity Capital Markets TRANSACTIONS List
Asia, inc Japan, ex Australia & New Zealand Apr 4-May 2 Issuer Proceeds Issue date (USDm)
HONG KONG COSCO Pacific Ltd Brightoil Petroleum(Hldgs)Ltd Chow Sang Sang Holdings Intl Skyworth Digital Holdings Ltd TUL Hua Han Bio-Pharm Hldg Ltd Asian Citrus Hldg Ltd China Precious Metal Resources City Telecom(HK)Ltd INDIA Essar Energy Ltd Adani Enterprises Ltd GMR Infrastructure Ltd Videocon Industries Ltd Tech Mahindra Ltd Kalpataru Power Transmission Shree Ganesh Jewellary House CORE Projects & Tech Ltd Bharat Forge Ltd INDONESIA Intiland Bk Internasional Indonesia PT Multipolar Tbk PT JAPAN Yamaha Motor Co Ltd Joyo Bank PHILIPPINES Metrobank Metro Pacific Investments Corp SOUTH KOREA Samsung Life Insurance Co Ltd Woori Fin Hldgs Co Ltd Taihan Electric Wire Co Ltd Halla Engineering & Constr TAIWAN Wintek Corp
Currency
Bookrunner(s)
Sector
601.3 128.9 128.5 116.0 109.5 91.1 69.8 53.6 52.3
04/29/10 04/12/10 04/27/10 04/13/10 04/29/10 04/15/10 04/21/10 04/29/10 04/23/10
HKD HKD HKD HKD HKD HKD HKD HKD USD
JP Morgan Securities Asia Pte; Goldman Sachs & Co Industrial & Comm Bank China Bank of America Merrill Lynch CLSA Morgan Stanley Kingston Securities Limited; First Shanghai Sec Ltd Bank of America Merrill Lynch; CLSA Oriental Patron Securities Ltd; Cantor Fitzgerald Inc Oppenheimer & Co Inc
Industrials Industrials Consumer Products and Services High Technology Healthcare Healthcare Consumer Staples Consumer Staples Telecommunications
1,943.2 331.2 313.1 249.5 146.9 101.8 83.6 75.0 61.3
04/30/10 04/28/10 04/19/10 04/23/10 04/28/10 04/30/10 04/08/10 04/15/10 04/26/10
GBP INR INR INR INR INR INR USD INR
Deutsche Bank AG; JP Morgan Cazenove ICICI Securities & Finance Co; Enam Securities; IDFC-SSKI Ltd DSP Merrill Lynch Ltd SBI Capital Markets Ltd; Indiainfoline Ltd; Link Intime India Pvt Ltd Citi Morgan Stanley; Nomura Holdings Inc; IDFC-SSKI Ltd; Collins Stewart Ltd Axis Bank Ltd; ICICI Securities & Finance Co; Avendus Capital Pvt Ltd Standard Chartered Bk (India) Axis Bank Ltd; Citigroup Global Markets India; Kotak Mahindra Capital Co
Energy and Power Consumer Products and Services Financials High Technology High Technology Energy and Power Consumer Products and Services High Technology Materials
230.1 154.8 83.7
04/09/10 04/08/10 04/12/10
IDR IDR IDR
Minna Padi Investama PT Sinartama Gunita PT Sharestar Indonesia PT
Real Estate Financials High Technology
835.1 95.8
04/13/10 04/12/10
JPY JPY
Nomura Securities Nomura Securities
Industrials Financials
112.0 94.6
04/29/10 04/15/10
MYR MYR
UBS Investment Bank CLSA
Financials Financials
4,409.1 1,033 165.7 97.4
04/23/10 04/08/10 04/14/10 04/09/10
KRW KRW KRW KRW
Korea Investment & Securities Credit Suisse; UBS Ltd; Daewoo Securities Co Ltd; Samsung Securities Tong Yang Securities Inc Woori Invest & Sec Co Ltd
Financials Financials High Technology Industrials
122.1
04/26/10
USD
JP Morgan Securities Asia Pte
High Technology
DEBT CAPITAL MARKETS TRANSACTIONS LIST
Asia, inc Japan, ex Australia & New Zealand Apr 4-May 2 Issuer Proceeds Issue date (USDm)
70
Bookrunner(s)
Sector
HKD HKD HKD
JP Morgan (Hong Kong) Hongkong & Shanghai Bank (HK) Hongkong & Shanghai Bank (HK)
Financials Financials Financials
04/29/10
INR
Financials
226.0 199.1 146.0
04/09/10 04/14/10 04/29/10
INR USD INR
Corporation Bank Steel Authority of India Ltd
123.5 123.2
04/29/10 04/16/10
INR INR
L&T Infrastructure Finance HDFC HDFC United Phosphorus Ltd IDFC IDFC IDFC INDONESIA Bakrie Telecom Pte Ltd JAPAN Japan Finance Corp Japan Housing Finance Agency Mizuho Corporate Bank Ltd Sumitomo Mitsui Banking Corp Development Bank of Japan Inc Bank of Tokyo-Mitsubishi UFJ Toyota AOT 2010-A Sekisui House Ltd ORIX Corp Japan Finance Corp NTT Data Corp Nissan Motor Co Ltd Metropolis of Tokyo Japan Finance Corp NTT Data Corp Tokyo Electric Power Co Inc Sumitomo Chemical Co Ltd JFM Japan Expressway Holding Kansai Electric Power Co Inc Central JR Hitachi Capital Corp JFM Chiba Prefecture Tokyo Electric Power Co Inc Nissan Motor Co Ltd Sumitomo Realty & Development Central Nippon Expressway All Nippon Airways Co Ltd Tokyo Metro Co Ltd Chubu Electric Power Co Inc Nippon Steel Corp Asahi Breweries Ltd Development Bank of Japan Inc Development Bank of Japan Inc Acom Co Ltd
118.6 113.0 112.6 67.8 56.5 56.3 56.3
04/16/10 04/09/10 04/05/10 04/09/10 04/09/10 04/05/10 04/05/10
INR INR INR INR INR INR INR
ICICI Sec Primary Dealership; Axis Bank Ltd; Trust Investment Advisors; Almondz Global Securities Ltd; ICICI Bank Ltd; Kotak Mahindra Finance Ltd; AK Capital Services Ltd; LKP Shares & Securities Ltd; SPA Merchant Bankers; Yes Bank Ltd; HSBC India; Edelweiss Capital; Darashaw & Co Ltd; R.R. Financial Consultants; Sec Trading Corp of India; SBI Capital Markets Ltd; Deutsche Bank (India); Real Growth Projects Ltd Standard Chartered Bk (India); Citibank NA (India); Axis Bank Ltd; SBI Capital Markets Ltd Citigroup Global Markets Inc; Deutsche Bank AG (London) Barclays Bank PLC; ICICI Sec Primary Dealership; ICICI Bank Ltd; Trust Investment Advisors; ING Vysya Bank; Deutsche Bank (India) Trust Investment Advisors; AK Capital Services Ltd Edelweiss Capital; Axis Bank Ltd; ICICI Bank Ltd; Trust Capital Services; ICICI Sec Primary Dealership; Almondz Global Securities Ltd; AK Capital Services Ltd; Deutsche Bank (India); Yes Bank Ltd; Real Growth Projects Ltd; Darashaw & Co Ltd Barclays Bank PLC ICICI Sec Primary Dealership ICICI Sec Primary Dealership Yes Bank Ltd Trust Investment Advisors Trust Investment Advisors ICICI Sec Primary Dealership; Trust Investment Advisors
Financials Financials Financials Materials Financials Financials Financials
250.0
04/30/10
USD
Credit Suisse; Bank of America Merrill Lynch; Morgan Stanley
Telecommunications
2249.5 1549.3 1394.1 1072.3 994.6 858.0 775.0 750.7 749.9 644.7 643.1 535.3 434.0 429.8 428.9 428.3 379.8 375.4 332.2 322.1 321.8 321.8 321.8 321.7 321.2 321.2 319.4 271.3 217.0 217.0 214.7 214.5 214.5 214.5 214.5 214.1
04/27/10 04/22/10 04/14/10 04/13/10 04/13/10 04/13/10 04/23/10 04/14/10 04/21/10 04/27/10 04/14/10 04/22/10 04/16/10 04/27/10 04/14/10 04/08/10 04/16/10 04/13/10 04/28/10 04/09/10 04/13/10 04/13/10 04/13/10 04/09/10 04/08/10 04/22/10 04/23/10 04/16/10 04/16/10 04/16/10 04/21/10 04/13/10 04/20/10 04/20/10 04/20/10 04/22/10
USD JPY JPY JPY USD JPY USD JPY USD JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY
Barclays Capital; BNP Paribas SA; Citi Nomura Securities Mizuho Securities Co Ltd Nikko Cordial Securities Inc Barclays Bank PLC; HSBC Holdings PLC Mitsubishi UFJ Securities Co JP Morgan; Bank of America Merrill Lynch; Barclays Capital Mitsubishi UFJ Securities Co Bank of America Merrill Lynch; Morgan Stanley & Co; UBS Investment Bank Nomura Securities; Daiwa Sec Capital Markets Mizuho Securities Co Ltd; Daiwa Sec Capital Markets Nikko Cordial Securities Inc Daiwa Sec Capital Markets Nomura Securities; Daiwa Sec Capital Markets Mizuho Securities Co Ltd; Mitsubishi UFJ Securities Co Mitsubishi UFJ Securities Co Nomura Securities Nomura Securities Mitsubishi UFJ Securities Co; Daiwa Sec Capital Markets; Nikko Cordial Securities Inc Nomura Securities Mitsubishi UFJ Securities Co; Mizuho Securities Co Ltd Mizuho Securities Co Ltd Nomura Securities Daiwa Sec Capital Markets; GSJCL Mizuho Securities Co Ltd Nikko Cordial Securities Inc Daiwa Sec Capital Markets Daiwa Sec Capital Markets; Nikko Cordial Securities Inc Nomura Securities Nomura Securities; Nikko Cordial Securities Inc Mitsubishi UFJ Securities Co Mitsubishi UFJ Securities Co; Mizuho Securities Co Ltd; Nikko Cordial Securities Inc Nomura Securities; Daiwa Sec Capital Markets Daiwa Sec Capital Markets; Nikko Cordial Securities Inc; Nomura Securities Daiwa Sec Capital Markets; Nikko Cordial Securities Inc; Nomura Securities Daiwa Sec Capital Markets; Deutsche Securities Inc
Government and Agencies Government and Agencies Financials Financials Government and Agencies Financials Financials Real Estate Financials Government and Agencies High Technology Industrials Government and Agencies Government and Agencies High Technology Energy and Power Materials Government and Agencies Government and Agencies Energy and Power Industrials Financials Government and Agencies Government and Agencies Energy and Power Industrials Real Estate Industrials Industrials Industrials Energy and Power Materials Consumer Staples Government and Agencies Government and Agencies Financials
HONG KONG Hong Kong Mortgage Corp Ltd Hong Kong Mortgage Corp Ltd Hong Kong Mortgage Corp Ltd INDIA Power Finance Corp Ltd
90.2 64.4 64.4
04/23/10 04/22/10 04/23/10
901.3
Hindustan Petroleum Corp Ltd Export-Import Bank of India NABARD
Currency
Energy and Power Financials Financials Financials Materials
Asian Legal Business ISSUE 10.5
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JFM Mori Building Co Ltd Nissan Motor Co Ltd Central Nippon Expressway Japan Finance Corp Tokyo Metro Housing Supply Central JR Hulic Co Ltd City of Nagoya Central Nippon Expressway Japan Real Estate Investment Sumitomo Chemical Co Ltd Sumitomo Metal Industries Ltd Tokyo Metro Co Ltd City of Osaka Credit Saison Co Ltd Mitsui Fudosan Co Ltd Sankei Building Co Ltd City of Kobe Mitsui & Co Ltd Tobu Railway Co Ltd Promise Co Ltd JFM Forester SPC JFM Mitsui-Soko Co Ltd American Honda Finance JFM JFM MALAYSIA Gerbang Perdana CIQ Sdn Bhd Axiata SPV1 (Labuan) Ltd Cagamas Berhad PHILIPPINES PSALM ADB Ayala Corp RCBC ADB ADB RCBC ADB SINGAPORE Yanlord Land Group Ltd PSA Corp Ltd Otto Marine Services Pte Ltd DBS Bank Ltd City Developments Ltd SOUTH KOREA Hana Bank Hyundai Motor CZ sro New Challenge Kodit 2010 Shinhan Financial Group Ltd Korea Housing Finance Corp Woori Bank Woori Bank SK Networks Co Ltd Dongbu HiTek Co Ltd LG Electronics Inc Kookmin Bank Hana Financial Group Inc Samsung Total Petrochemicals Kyongnam Bank Woori Financial Co Ltd Shinhan Capital Co Ltd Hite Brewery Co Ltd Kosepco(KEPCO/South Korea) Kospo(KEPCO/South Korea) CJ Corp Shinhan Card Busan Bank Woori Bank Hyundai Dept Store Co Ltd Busan Bank SK Engineering & Constr Co Ltd Ssangyong Cement Indl Co Ltd Hana Bank LG Telecom Co Ltd CJ CGV Co Ltd Korea Hydro & Nuclear Power Co GS Engineering & Constr Corp Doosan Heavy Inds & Constr Co Woongjin Holdings Co Ltd Samsung Card Co Ltd Doosan Engine Co Ltd Samsung Card Co Ltd KT Rental Co Ltd Hana Bank Shinhan Card Shinhan Bank Woori Bank Posco Power Corp Poongsan Holdings Corp KDB Capital Corp POSCO Specialty Steel Co Ltd Hansol Paper Co Ltd CJ GLS Inc Samsung Card Co Ltd Hanwha Engineering & Constr Co CJ O Shopping Co Ltd Hana Bank Hyundai Capital Services Inc Export-Import Bank of Korea SK Securities Co Ltd Samsung Card Co Ltd Ssangyong Cement Indl Co Ltd Korea Development Corp TAIWAN Taipower Nan Ya Plastics Corp Formosa Plastics Corp Formosa Chem & Fibre Corp Yuen Foong Yu Paper Mnfg Co Uni-President Enterprises Corp THAILAND Thai Oil PCL PEA(Thailand)
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214.1 214.1 214.1 162.8 161.2 160.9 160.9 128.7 128.4 108.5 108.5 108.5 108.5 108.5 108.4 107.5 107.5 107.4 107.4 107.4 107.1 106.1 96.7 92.5 75.2 75.1 75.0 64.2 53.7
04/22/10 04/22/10 04/22/10 04/16/10 04/27/10 04/09/10 04/13/10 04/20/10 04/22/10 04/16/10 04/16/10 04/16/10 04/16/10 04/16/10 04/16/10 04/15/10 04/15/10 04/21/10 04/09/10 04/09/10 04/22/10 04/22/10 04/28/10 04/30/10 04/28/10 04/09/10 04/28/10 04/22/10 04/28/10
JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY USD JPY JPY
Nomura Securities Mitsubishi UFJ Securities Co Nikko Cordial Securities Inc Nomura Securities Nomura Securities; Daiwa Sec Capital Markets Mizuho Securities Co Ltd; Nomura Securities Mitsubishi UFJ Securities Co; Nomura Securities Mizuho Securities Co Ltd Barclays Capital Japan Daiwa Sec Capital Markets; Nomura Securities; Nikko Cordial Securities Inc Mizuho Securities Co Ltd Mizuho Securities Co Ltd Nikko Cordial Securities Inc Nomura Securities; Nikko Cordial Securities Inc Mizuho Securities Co Ltd; Mizuho Investors Securities Co; Merrill Lynch Securities Co Mitsubishi UFJ Securities Co Nikko Cordial Securities Inc Daiwa Sec Capital Markets Daiwa Sec Capital Markets; Barclays Capital Japan Nomura Securities Mitsubishi UFJ Securities Co UBS Securities Japan Ltd Shinkin Securities Mizuho Corporate Bank Ltd Nomura Securities Nomura Securities Deutsche Bank Securities Corp Nikko Cordial Securities Inc Daiwa Sec Capital Markets
Government and Agencies Real Estate Industrials Industrials Government and Agencies Government and Agencies Industrials Real Estate Government and Agencies Industrials Real Estate Materials Materials Industrials Government and Agencies Financials Real Estate Real Estate Government and Agencies Consumer Products and Services Industrials Financials Government and Agencies Financials Government and Agencies Industrials Financials Government and Agencies Government and Agencies
314.2 299.8 156.1
04/17/10 04/22/10 04/27/10
MYR USD MYR
CIMB Investment Bank Bhd; Alliance Investment Bank Bhd Goldman Sachs & Co; Morgan Stanley; CIMB Investment Bank Bhd AmInvestment Bank Bhd
Industrials Financials Financials
671.0 369.4 225.4
04/12/10 04/20/10 04/15/10
PHP AUD PHP
Financials Government and Agencies Financials
190.7 161.6 130.2 97.8 53.9
04/15/10 04/13/10 04/14/10 04/15/10 04/13/10
PHP AUD BRL PHP NZD
Development Bk of Philippines; First Metro Investment Corp; HSBC Manila Commonwealth Bank of Australia; RBC Capital Markets; TD Securities Inc HSBC Manila; BPI Capital; BDO Capital Investment Corp; First Metro Investment Corp; RCBC Capital Corporation; ING Bank Manila; Standard Chartered (Manila); Citibank NA (Manila) HSBC Manila Nomura International PLC TD Securities Inc HSBC Manila Nomura International PLC
300.0 290.9 72.9 70.9 65.3
04/26/10 04/20/10 04/28/10 04/13/10 04/19/10
USD SGD SGD HKD SGD
HSBC Holdings PLC; RBS; Standard Chartered Bank PLC DBS Bank Ltd Standard Chartered Bank (SG) Standard Chartered Bank (HK); DBS Bank (Hong Kong) Ltd DBS Bank Ltd
Real Estate Industrials Financials Financials Real Estate
499.2 498.5 408.6 403.7 372.8 311.5 241.4 224.3 207.5 171.4 147.3 135.3 134.3 133.5 125.2 117.3 107.4 106.8 100.0 98.5 97.9 90.6 90.2 90.2 90.1 90.1 90.1 90.0 89.7 89.5 89.5 89.1 89.0 80.7 80.2 72.2 72.0 71.6 71.6 63.1 63.1 63.1 62.8 62.7 54.2 54.1 54.1 54.1 54.0 53.8 53.7 52.2 50.0 49.6 45.3 45.1 45.1 45.1
04/26/10 04/12/10 04/22/10 04/29/10 04/23/10 04/06/10 04/19/10 04/30/10 04/23/10 04/22/10 04/05/10 04/23/10 04/20/10 04/06/10 04/19/10 04/15/10 04/09/10 04/08/10 04/15/10 04/09/10 04/06/10 04/26/10 04/15/10 04/23/10 04/16/10 04/16/10 04/27/10 04/14/10 04/30/10 04/09/10 04/20/10 04/05/10 04/06/10 04/12/10 04/05/10 04/15/10 04/14/10 04/09/10 04/27/10 04/15/10 04/16/10 04/16/10 04/30/10 04/09/10 04/21/10 04/15/10 04/22/10 04/28/10 04/14/10 04/29/10 04/09/10 04/09/10 04/23/10 04/30/10 04/26/10 04/16/10 04/19/10 04/28/10
USD USD KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW USD KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW USD SGD KRW KRW KRW KRW
Bank of America Merrill Lynch; Citi; JP Morgan; RBS; Hana Bank Barclays Capital; Bank of America Merrill Lynch; Citi; Goldman Sachs & Co; Nomura Securities Tong Yang Securities; Bookook Securities Co Ltd; IBK Securities Co Ltd; Woori Invest & Sec Co Ltd SK Securities Co Ltd E Trade Korea Co Ltd; Hanwha Securities Co; KB Invest & Sec Hana Daetoo Securities Co Ltd Hana Daetoo Securities Co Ltd Hana Daetoo Securities Co Ltd Dongbu Securities Woori Invest & Sec Co Ltd Kyobo Securities Co Ltd SC Securities Korea Ltd Daewoo Securities Co Ltd; SK Securities Co Ltd Hyundai Securities Co Ltd Korea Investment & Securities SC Securities Korea Ltd Korea Investment & Securities KB Invest & Sec Woori Invest & Sec Co Ltd Samsung Securities; Korea Investment & Securities Samsung Securities Korea Investment & Securities KB Invest & Sec Korea Investment & Securities Hana Daetoo Securities Co Ltd Mirae Asset Securities; SC Securities Korea Ltd Korea Development Bank SC Securities Korea Ltd Korea Investment & Securities; LIG Investment & Securities Co Daewoo Securities Co Ltd Woori Invest & Sec Co Ltd KB Invest & Sec KB Invest & Sec Woori Invest & Sec Co Ltd SC Securities Korea Ltd Kumho Investment Bank SC Securities Korea Ltd Hyundai Securities Co Ltd; Tong Yang Securities; Woori Invest & Sec Co Ltd; KB Invest & Sec SC Securities Korea Ltd Dongbu Securities Mirae Asset Securities SC Securities Korea Ltd KB Invest & Sec SK Securities Co Ltd Hyundai Securities Co Ltd Tong Yang Securities Kiwoom Securities Co Tong Yang Securities Shinhan Investment Bank Shinhan Investment Corp Samsung Securities SC Securities Korea Ltd Korea Investment & Securities Standard Chartered Bank PLC Shinhan Investment Corp SC Securities Korea Ltd Hanwha Securities Co Tong Yang Securities
Financials Industrials Financials Financials Financials Financials Financials Telecommunications Materials High Technology Financials Financials Materials Financials Financials Financials Consumer Staples Energy and Power Energy and Power Financials Financials Financials Financials Retail Financials Industrials Materials Financials Telecommunications Media and Entertainment Energy and Power Industrials Industrials Financials Financials Industrials Financials Consumer Products and Services Financials Financials Financials Financials Energy and Power Materials Financials Materials Materials Industrials Financials Industrials Media and Entertainment Financials Financials Financials Financials Financials Materials Consumer Products and Services
369.6 191.6 191.5 191.5 79.9 69.8
04/22/10 04/30/10 04/23/10 04/23/10 04/26/10 04/12/10
TWD TWD TWD TWD TWD TWD
Standard Chartered (Taiwan) Mega Securities Co Ltd Masterlink Securities Co Capital Securities Corp KGI Securities (Taiwan) Fubon Securities Co Ltd
Energy and Power Materials Materials Consumer Staples Materials Consumer Products and Services
93.0 46.5
04/29/10 04/27/10
THB THB
Standard Chartered Bank(Thai) Hongkong & Shanghai Banking
Energy and Power Energy and Power
Financials Government and Agencies Government and Agencies Financials Government and Agencies
71