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ISSUE 6.10

ALB Special Report: Shenzhen 09 Firms drive and benefit from 2020 vision

法律服务业将为构建深港大都会做贡献并受益于这一进程

In-house at CITIC Securities

Head of legal Philip Ng on chemistry and cooperation

专访中信证券国际有限公司法律及合规部主管吴文翰

Aviation

Legal work set to take off

航空领域进一步市场化助专业律师远举高飞

CHINA

China’s world-beating recovery – 12  firms reveal their strategies n DEALS ROUNDUP n UK, US REPORTS n Lateral moves n LATEST CAPITAL MARKETS DATA n APPOINTMENTS

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CN ALB In-House Legal Summit China - Beijing – 2009 26 November 2009, Swissôtel Beijing Hong Kong Macau Center

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AU JP

Asia’s most respected legal industry publication, Asian Legal Business Magazine, is proud to present ALB In-house legal summit Beijing on 26 November 2009. Now in its sixth year, this special one-day event is tailored to bring together leading senior-level corporate counsel, business leaders and private practice lawyers. The summit represents a unique opportunity to interact with some of the most active and influential lawyers in Mainland China and across Asia. The focused and interactive practice area workshops, plenary sessions and panel discussions provide a forum for the frank exchange of views, the sharing of best practices and the formation of strategies to help you overcome the challenges of 2009 and beyond. Why you should attend: • In-depth workshops focusing on the latest legal issues presented by top domestic and international law firms • Opportunities to network and meet leading legal experts and peers • Panel discussion on the vital role of in-house counsel by some of China’s most distinguished and dynamic corporate counsel • VIP networking luncheon Topics include: • 2010 - A Year of Economic Transition in China and the United States: Risks and Opportunities for Chinese Companies • Time for some House Keeping • Essential Employment Law Developments : Must Know for Employers • PLUS: In-house Panel Discussion – The Changing Face of Corporate Governance and Risk Management Distinguished speakers include: Gregory Sy Attorney-at-Law (New York)/ Senior Foreign Counsel Grandall Legal Group, Beijing

Wenjie Sun Partner, Attorneyat-Law Grandall Legal Group, Beijing

Will Fung Senior Foreign Counsel Grandall Legal Group, Beijing

Malhar S. Pagay Partner Pachulski Stang Ziehl & Jones LLP

Don S. Williams Partner Wilson Sonsini Goodrich & Rosati

Laura H. Luo Associate Wilson Sonsini Goodrich & Rosati

Adam Duthie Head of European Commercial Group Withers Worldwide

Guy Facey Hong Kong Regional Head of Corporate Withers Worldwide

Isabelle Wan Senior Partner & Leader, Employment Law Practice TransAsia Lawyers

The Changing Face of Corporate Governance and Risk Management – In-house Panel Discussion Many new laws and regulations have been introduced in recent years and, together with the GFC, they have fundamentally changed the way business is conducted in Mainland China and throughout the region. Two areas where such changes will be most salient are compliance and risk management. Our panellists will discuss what this means for in-house lawyers, what new responsibilities they can expect and the keys to ensuring their business’s sustainable growth in light of the changing economic climate and regulatory environment. Featuring panelists: Tengqun Yu Secretary to the Board & Joint Company Secretary China Railway Group Limited

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Editorial >>

Celebrate our future path

T

his year marks not only the 60th anniversary of the country but also the 30th anniversary of the restoration of the legal system. Members of the legal profession have much to celebrate of course, but might also take the chance to reflect on what remains to be done. The development of the profession and the legal system over the past three decades has been in concert with the country’s reform and opening up – from Coudert Brothers’ pioneering launch in Beijing in 1979 to the founding of the All China Lawyers Association in 1986, the formation of the first-ever partnership law firm in 1988, and the emergence of today’s giant firms such as Jun He, King & Wood, Grandall and Dacheng. During the process, law firms have been contributing significantly to the economic development and social stability of China. Today, more than 156,000 lawyers – together with 200,000 judges, 160,000 prosecutors and hundreds of thousands of corporate counsel – form the legal system. A fast-growing legal education system as we know it (now with over 600 law schools and faculties) produces much-needed legal talent for the industry’s continuous progression. The global financial crisis is also a landmark event in the development of the legal profession – the first true test of the young industry. Once overstretched firms were given the opportunity to slow down the pace, and rethink their business plans and models. Moving forward, China is expected to play a larger role globally in the post-financial crisis era, so law firms are facing a unique set of opportunities and challenges. Key trends of the past few years bode well for the future development of the legal profession. The steady accumulation of a body of law, enterprises’ increased emphasis on corporate governance and risk management, and an increasing economic autonomy and sense of professionalism all come to mind. Those who identify challenges first and respond quicker to changes in the market will be leaders in the next phase of the profession’s development. There is no doubt that the legal profession has come a long way. It is equally certain, however, that it still has a long way to go.

IN THE FIRST PERSON “Chinese banks have become more aggressive. They are seeing [the downturn] as an opportunity to position strategically” Michelle Hung, general counsel, COSCO Pacific, on renewed bank lending practices (p13)

“Shenzhen is an original entrepreneurial success story of China, and remains the most open and flexible place in the country” Peter Fuhrman, chairman, China First Capital (p34)

“The three dominant airlines – and some leading private airlines – will be actively acquiring smaller airline companies or sideline companies, and restructuring their businesses and finances” Gao Feng, partner, Grandall (p41)

Moving forward, China is expected to play a larger role globally in the post-financial crisis era, so law firms are facing a unique set of opportunities and challenges CHINA

2

ISSUE 6.10


CONTENTS >>

contents 28

ALB China issue 6.10

38

34

44

COVER STORY

28 New strategies for a new era In the post-crisis era, China is tipped to have a much bigger role in rebuilding and guiding the global economy. Changes in the world order have brought about a unique set of opportunities and challenges for China’s legal community. Twelve firms share their new strategies for staying ahead of the curve

ANALYSIS 10 Shanghai plans ‘international board’ While Shenzhen’s growth enterprise board is still the immediate focus of investors and enterprises’ attention, the prospects of an international board for Shanghai are increasingly on the minds of all market participants 12 Bank loans back in fashion Encouraged by the central government, PRC banks are back with a vengeance and eager to fill their loan books. ALB China investigates which legal advisers stand to benefit 14 New progress in merger control Two new decisions made by MOFCOM on major global transactions demonstrate the regulators’ willingness to intervene in cases that may give rise to concerns in China

FEATURES 34 ALB Special Report: Shenzhen 09 The spirit of entrepreneurship will lead Shenzhen’s legal profession to greater success, as the city strives towards its vision to develop the Hong Kong-Shenzhen metropolis

4

38 Aviation Lawyers focusing on the aviation sector will see clients demand more legal advice in an industry that is increasingly market-oriented

19 21 46 47

42 ALB Hong Kong Law Awards 2009 The definitive list of the award winners from the premier event on Hong Kong’s legal calendar

COMMENTARY

44 In-house perspective: CITIC Philip Ng, head of CITIC Securities International’s legal and compliance department, shares his company’s plans for international expansion

REGULARS 6 10 18 • • • • • •

DEALS NEWS ANALYSIS NEWS Dacheng admitted to membership of WSG Ten firms to act on first GEB listings Shanda general counsel expects more M&A after NASDAQ IPO CIC commodity spree continues TransAsia enters strategic alliance with Australia’s Freehills Firms to present to in-house lawyers in Beijing

UK report US report M&A Deals Data Capital Markets Deals Data

17 Arbitration CIETAC 22 Regulatory Paul Weiss 23 Singapore Loo & Partners 25 International tax AzureTax

PROFILES 15 27 33 40 41

Lee and Li Han Kun WongPartnership Run Ming Kingfield

ISSUE 6.10


CHINA


NEWS | deals >>

| CHINA / HONG KONG |

deals in brief

►► China South City Holdings IPO 华南城控股香港IPO Value: US$404m

Firm: Baker & McKenzie Lead lawyers: Elsa Chan, Brian Spires Client: Issuer Firm: Commerce & Finance Client: Issuer Firm: Jun He Client: Underwriter

Ven Tan Morrison & Foerster

Firm: Morrison & Foerster Lead lawyers: Ven Tan, Chris Forrester Client: Underwriter Firm: Simpson Thacher & Bartlett Client: Underwriter • MoFo advised on the US$1.13bn Sinopharm IPO and China Zhongwang’s US$1.2bn global offering earlier this year • China South City Holdings will use the net proceeds to fund further expansion of China South City Shenzhen, and development of similar trade and industrial centres in Nanchang and Nanning

| CHINA / US |

| CHINA / HONG KONG / US | ►► Metallurgical Corporation of China IPO 中国中冶A+H上市 US$5.3bn

Firm: Jia Yuan Lead lawyers: Yan Yu, Xu Ying, Liu Wen Client: Issuer Firm: Davis Polk & Wardwell Lead lawyer: Show-Mao Chen Client: Issuer Firm: Slaughter and May Lead lawyer: Benita Yu Client: Issuer Firm: Tian Yuan Lead lawyer: Liu Yan Client: Underwriters Firm: Freshfields Bruckhaus Deringer

6

HEADLINE DEAL

Lead lawyer: Kay-Ian Ng Client: Underwriters Firm: Shearman & Sterling Lead lawyers: Alan Seem, Larry Crouch Client: Underwriters • This is the second-largest IPO in the world this year • Jia Yuan and Tian Yuan have had a busy time recently advising on a number of other capital markets transactions

►► Shanda Games IPO 盛大游戏美国上市 Value: US$1bn

Firm: Jade & Fountain Lead lawyer: Scott Guan Client: Issuer Firm: Davis Polk & Wardwell Lead lawyers: James Lin, John Paton, Kyoko Takahashi Lin Client: Issuer Firm: Conyers Dill & Pearman Client: Issuer Firm: Simpson Thacher & Bartlett Lead lawyers: Chen Leiming, Robert Holo, William Hinman Client: Joint bookrunners

advised Shanda on its public offering of convertible senior notes worth US$155m last year Scott Guan • Listing Jade & Fountain represents largest equity offering by a China-based media company in the US, the largest ever single-listed IPO by any ChinaJames Lin Davis Polk & based company Wardwell and the largest IPO in the US by any issuer to date in 2009

| CHINA / Hong Kong | ►► China Lilang Hong Kong IPO 利郎男装登陆港交所 Value: US$150m

Firm: Latham & Watkins Lead lawyer: Eugene Lee Client: Issuer Firm: Jingtian & Gongcheng Lead lawyer: Li Lingxia Client: Issuer

Eugene Lee Latham & Watkins

Firm: Chiu & Partners Client: Issuer Firm: Conyers Dill & Pearman Client: Issuer Firm: Fried Frank Lead lawyers: Victoria Lloyd, Joshua Wechsler Client: Underwriters • First listing by a Chinese menswear company on the Hong Kong Stock Exchange • Deal consists of 300 million primary shares, representing 25% of the company

Firm: Commerce & Finance Client: Joint bookrunners Yan Yu Jia Yuan

• Davis Polk, Conyers Dill & Pearman and Jade & Fountain previously ISSUE 6.10


NEWS | deals >>

| CHINA / INDONESIA | ►► China Investment Corporation – Bumi Resources investment 中国中投收购印尼Bumi Value: US$1.9bn

Firm: Davis Polk & Wardwell Lead lawyers: William Barron, John Paton Client: CIC Firm: Jones Day Lead lawyer: Brian Wesol, Herman Yip Client: Bumi

►► YOUR MONTH AT A GLANCE Firm

Jurisdiction

Deal name

Allen & Gledhill Allens Arthur Robinson Allen & Overy Baker & McKenzie

China / Singapore China / Australia China / Hong Kong China / US China / Hong Kong China/ Hong Kong China / US China/ Hong Kong China China / Spain China / Hong Kong China/ Singapore China / Singapore China / US China / US China / Hong Kong China / Hong Kong China / Singapore China/ US China China / Hong Kong China/ Hong Kong

China Investment Corporation – Noble Group investment Right Lane syndicated loan Asian Development Bank – China Everbright loan China South City IPO Sino-Ocean Land syndicated loan Sinopharm Group IPO SmartHeat Inc IPO Sinopharm Group IPO China Lilang IPO China Unicom – Telefónica alliance Yingde Gases IPO Bank of China – Huaneng Power finance facility China Pharma – Sihuan Pharmaceutical acquisition China South City IPO Shanda Games IPO Yingde Gases IPO Power Long Real Estate IPO China Pharma – Sihuan Pharmaceutical acquisition Shanda Games IPO China Lilang IPO Yingde Gases IPO Tomson Group land acquisition

DLA Piper Fangda

China / Hong Kong/ US China / US China/ Indonesia China / US China

Metallurgical Corporation of China IPO Shanda Games IPO China Investment Corporation – Bumi Resources investment China Natural Gas NASDAQ listing Geely Automobile convertible bonds issuance

Fortsakis, Diakopoulos

China / Greece

Freshfields Bruckhaus Deringer

China / Hong Kong/ US China / Hong Kong China / Hong Kong China / Spain

China Development Bank – Piraeus Container Terminal project finance Metallurgical Corporation of China IPO Power Long Real Estate IPO Yingde Gases IPO China Unicom – Telefónica alliance

Fried Frank

China

China Lilang IPO

Global Grandall Guantao Han Kun Herbert Smith Jade & Fountain Jiarui Jia Yuan Jingtian & Gongcheng

Karatzas & Partners

China / Hong Kong China / Hong Kong China China/ US China China / US China / US China / Hong Kong/ US China China / Hong Kong China / Indonesia China / US China / Hong Kong China / Greece

KhattarWong King & Wood

China / Singapore China / Australia

Asian Development Bank – China Everbright loan Sinopharm Group IPO Sinopec – Asset Management Company acquisition China Natural Gas NASDAQ listing Sinopec – Asset Management Company acquisition Shanda Games IPO China Natural Gas NASDAQ listing Metallurgical Corporation of China IPO China Lilang IPO Power Long Real Estate IPO China Investment Corporation – Bumi Resources investment China South City IPO Yingde Gases IPO China Development Bank – Piraeus Container Terminal project finance China Pharma – Sihuan Pharmaceutical acquisition Right Lane syndicated loan

Beijing Rondos Chen & Co Chiu & Partners Clifford Chance

Commerce & Finance William Barron Davis Polk & Wardwell

• Transaction marks CIC’s first major investment in Indonesia, investment is in the form of a debtlike instrument with a cash coupon of 12% annually and a total IRR of 19% • Jones Day advised Bumi on its US$260m loans last year and its US$375m bond issuance in August

“China’s appetite for natural resources has given rise to a number of M&A and fundraising transactions for us and this trend is likely to continue” William Barron, Davis Polk & Wardwell

| CHINA / SINGAPORE | ►► China Investment Corporation – Noble Group investment 中国中投收购来宝集团15% 股权 Value: US$850m

Firm: WongPartnership Lead lawyers: Dilhan Pillay Sandrasegara, Gerry Gan, Linda Wee, Miao Miao Client: CIC Firm: Allen & Gledhill Lead lawyers: Lim Mei, Leonard Ching, Lee Kee Yeng Client: Noble Group

Conyers Dill & Pearman

David & Lo Partners Davis Polk & Wardwell

Jones Day Jun He

Latham & Watkins

China

China Lilang IPO

Loeb & Loeb Maples and Calder Morrison & Foerster

China / US China / Hong Kong China / US China / Hong Kong China/ US China/ Australia

China Natural Gas NASDAQ listing Power Long Real Estate IPO China South City IPO Sinopharm Group IPO SmartHeat Inc IPO Right Lane syndicated loan

China/ Greece

China Development Bank – Piraeus Container Terminal project finance Sino-Ocean Land syndicated loan Asian Development Bank – China Everbright loan Zhu Kuan (Hong Kong) debt restructuring China Pharma – Sihuan Pharmaceutical acquisition

Newman & Newman Norton Rose Orrick, Herrington & Sutcliffe Paul Hastings

Paul Weiss www.legalbusinessonline.com

China/ Hong Kong China/ Hong Kong China/ Hong Kong China/ Singapore

Value Deal type (US$m) 850 Equity 145 Debt market 200 Finance 404 Equity 700 Finance 1,130 Equity 75 Equity 1,130 Equity 150 Equity 1,000 M&A 450 Equity 2,250 Finance 318 M&A 404 Equity 1,000 Equity 450 Equity 500 Equity 318 M&A 1,000 Equity 150 Equity 450 Equity 322 M&A 5,300 1,000 1,900 50 243

Equity Equity Equity Capital market Debt market

493

Project finance

5,300 500 450 1,000

Equity Equity Equity M&A

150

Equity

200 1,130 506 50 506 1,000 50 5,300 150 500 1,900 404 450 493 318 145 150

Finance Equity M&A Capital market M&A Equity Capital market Equity Equity Equity Equity Equity Equity Project finance M&A Debt market Equity

50 500 404 1,130 75 145

Capital market Equity Equity Equity Equity Debt market

493

Project finance

700 200 55 318

Finance Finance Debt market M&A

7


NEWS | deals >>

• Sale includes 135 million shares owned by CEO Richard Elman, and 438 million new shares which will give CIC a 14.9% stake in Noble

Firm: Loeb & Loeb Client: Underwriters

and China Construction Bank acted as the mandated coordinating arrangers Dilhan Pillay Sandrasegara WongPartnership

• Syndication Vivian Lam received Paul Hastings overwhelming response from 19 lenders, upsized from US$300m to US$700m

| CHINA / SPAIN | ►► China Unicom – Telefónica alliance 西班牙电信运营商与联通深 化战略联盟 Value: US$1bn

Firm: Clifford Chance

►► Asian Development Bank – China Everbright loan facility 亚开行为中国光大提供贷款 Value: US$200m

Lead lawyer: Cherry Chan Client: Telefónica Firm: Sullivan & Cromwell Lead lawyer: Chun Wei Client: China Unicom

| CHINA / HONG KONG |

Firm: Global Law Office Lead lawyer: Zhang Xin Client: ADB

Chun Wei Sullivan & Cromwell

Firm: Freshfields Bruckhaus Deringer Lead lawyer: Teresa Ko Client: China Unicom

Firm: Allen & Overy Client: Asia Development Bank Firm: Paul Hastings Lead lawyers: Vivian Lam, Raymond Li

Zhang Xin Global Law Office

Client: China Everbright • China Unicom and Spain’s Telefonica will swap US$1bn of shares in deal which will create customer base of 500 million • Fourth deal for Clifford Chance with longstanding clients Telefonica • Deal sees regrouping of the legal teams at CC, Freshfields, S&C involved in 2008’s China Netcom China Unicom merger

| CHINA / HONG KONG | ►► Sino-Ocean Land syndicated loan 远洋地产获银团贷款 Value: US$700m

Firm: Paul Hastings Lead lawyer: Vivian Lam Client: Sino-Ocean Firm: Baker & McKenzie Client: Bank of China, CCB • Funds were provided by a syndicate of 19 banks. Bank of China

8

• Asian Development Bank provided US$200m loan to China Everbright to finance various waste-to-energy projects in cities across China • First private-sector municipal solid waste management project by ADB • Paul Hastings advised China Everbright on US$1.5bn JV with Macquarie Bank JV in September

| CHINA / US | ►► China Natural Gas NASDAQ listing 西蓝天然气美国上市 Value: US$50m

Firm: DLA Piper Lead lawyers: Gene Buttrill, Rocky Lee Client: Issuer Firm: Jiarui Law Firm Client: Issuer Firm: Han Kun Law Firm Client: Underwriters

• China Natural Gas is the first China-based natural gas company publicly traded in the US capital markets • Deal is significant as natural gas is cleanest of all fossil fuels, and represents China’s shift to becoming a serious clean-energy player

“The amount of activity in China’s clean energy sector and a Chinese government increasingly focused on environmental solutions is pushing out some excellent opportunities for domestic and overseas investors” Rocky Lee, DLA Piper

| CHINA / GREECE | ►► China Development Bank – Piraeus Container Terminal project finance 国开行为中远太平洋希腊港 口项目提供融资 Value: US$493m

Firm: Zhong Lun Client: China Development Bank Firm: PC & Woo Client: China Development Bank Firm: Karatzas & Partners Client: China Development Bank Firm: Fortsakis, Diakopoulos, Mylonogiannis & Associates Client: Piraeus Firm: Orrick, Herrington & Sutcliffe Lead lawyer: Christopher Stephens Client: Piraeus

Law Awards 2009 for ‘Project Finance Deal of the Year’ for its role advising COSCO Pacific on the concession to develop and operate two piers in Piraeus

| CHINA / HONG KONG | ►► Power Long Real Estate Holdings IPO 宝龙地产香港上市 Value: US$500m

Firm: Jingtian & Gongcheng Client: Issuer Firm: Sidley Austin Client: Issuer Firm: Maples and Calder Client: Issuer Firm: Freshfields Client: Underwriters Firm: Commerce & Finance Client: Underwriters • Jingtian & Gongcheng is one of Power Long’s long-standing PRC counsel • Powerlong is offering shares equivalent to 25% of the company in this deal

| CHINA / HONG KONG | Christopher Stephens Orrick, Herrington & Sutcliffe

• Legal advice from all firms was provided to Piraeus’s parent company, COSCO Pacific • Orrick was a finalist in ALB China

►► Yingde Gases IPO 盈德气体香港上市 Value: US$450m

Firm: Conyers Dill & Pearman Client: Issuer Firm: Jun He Client: Issuer ISSUE 6.10


NEWS | deals >>

►► YOUR MONTH AT A GLANCE (Cont) Firm

Jurisdiction

Deal name

PC & Woo

China/ Greece

Rajah & Tann Shearman & Sterling Shu Jin Sidley Austin Simpson Thacher & Bartlett

China/ Singapore China/ Hong Kong/ US China/ Hong Kong China/ Hong Kong China/ US China/ US China/ Hong Kong/ US China China China/ Spain China/ Hong Kong/ US

China Development Bank – Piraeus Container Terminal project finance China Gaoxian Fibre Fabric IPO Metallurgical Corporation of China IPO Tomson Group land acquisition Power Long Real Estate IPO China South City IPO Shanda Games IPO Metallurgical Corporation of China IPO PE investor – Bojie Oriental Media Geely Automobile convertible bonds issuance China Unicom – Telefónica alliance Metallurgical Corporation of China IPO

Slaughter and May

Sullivan & Cromwell Tianyuan White & Case Winston & Strawn WongPartnership

Firm: Freshfields Client: Yingde Firm: Clifford Chance Lead lawyer: Amy Lo Client: Underwriters Firm: Commerce & Finance Client: Underwriters • Yingde used Freshfields for HK and US advice, Jun He for PRC and Conyers Dill & Pearman for BVI advice

| CHINA | ►► Geely Automobile Holdings convertible bonds issuance 高盛资本认购吉利可转债 Value: US$243m

Firm: Slaughter and May Lead lawyer: Neil Hyman Client: GS Capital Firm: Fangda Client: GS Capital Firm: Sidley Austin Client: Geely

Neil Hyman Slaughter and May

• Slaughter and May advised GS Capital Partners VI Fund, in relation to its subscription for convertible bonds due 2014 and warrants to subscribe for ordinary shares in the share capital of Geely Automobile • Geely Automobile is one of the largest car manufacturers in PRC

Zhong Lun

China/ Singapore China/ Hong Kong China/ US China/ Singapore China Singapore China/ Singapore China/ Greece

China Gaoxian Fibre Fabric IPO Zhu Kuan (Hong Kong) debt restructuring SmartHeat Inc IPO China Pharma – Sihuan Pharmaceutical acquisition China Investment Corporation – Noble Group investment Bank of China – Huaneng Power finance facility China Development Bank – Piraeus Container Terminal project finance

83.2 5,300 322 500 404 1,000 5,300 60 243 1,000 5,300

Capital market Capital market M&A Capital market Capital market Capital market Capital market Private equity Debt market M&A Capital market

83 55 75 318 850 2,250 493

Capital market Debt market Capital market M&A Equity Finance Project finance

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

| CHINA/US | ►► SmartHeat Inc IPO 睿能集团美国上市 Value: US$75m

Firm: Beijing Rondos Law Firm Client: Issuer Firm: Newman & Newman Client: Issuer Firm: Winston & Strawn Lead lawyers: Simon Luk Winston & Strawn Simon Luk, Eric Cohen Client: Sole bookrunner • SmartHeat is a US publicly listed company in Nasdaq with operations in the PRC

| CHINA / Hong kong | ►► Tomson Group Shanghai land acquisition 汤臣集团上海购地 Value: US$322m

Firm: Shu Jin Law Firm Lead lawyer: Li Qian Client: Tomson Group Firm: David & Lo Partners

www.legalbusinessonline.com

Value Deal type (US$m) 493 Project finance

alb@keymedia.com.au

61 2 8437 4700

Lead lawyer: Luo Guogui Client:Shanghai Pudong Land Development • Shu Jin advised Tomson Group on acquisition of 30% stake of its JV company from Shanghai Pudong Land Development • Transaction gives it 1,480,000 sqm of land worth US$322m

history in terms of total funds frozen, following China Railway Construction Co’s US$5.3bn IPO last year, which B&M advised on

| CHINA/ AUSTRALIA | ►► Right Lane Syndicated loan 南明获银团贷款 Value: US$145m

| CHINA / HONG KONG | ►► Sinopharm Group IPO 国药控股香港上市 Value: US$1.13bn

Firm: Baker & McKenzie Lead lawyers: Anthony Jacobsen, Elsa Chan, Allen Shyu, Brian Spires Client: Sinopharm Firm: Chen & Co Lead lawyers: Arthur Chen, Chen Ying Ming Client: Sinopharm Firm: Grandall Legal Group Client: Underwriters

Firm: King & Wood Client: Lenders Firm: Allens Arthur Robinson Lead lawyer: Matthew Barnard Client: Lenders Firm: Norton Rose Client: Right Lane • AAR acted for the syndicate banks – Bank of China (Hong Kong), ANZ Bank, Bank of China (Macau Branch) and Nanyang Commercial Bank – in relation to US$439m syndicated loan to Cheung Kong Infrastructure Finance (Australia)

Firm: Morrison & Foerster Lead lawyer: Ven Tan Client: Underwriters

• Natixis, Bank of East Asia, Wing Lung Bank, China Merchants Bank and Bank of China (Macau) are the lead lenders

• Sinopharm Group’s debut on HKSE and second-largest listing in HK

• Loan will be used to repay the company’s medium-term US private placement debt and existing facilities

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Analysis >>

Shanghai chasing international dreams

As Shanghai pursues its international goal by planning to allow foreign companies to list, potential issuers and law firms are jockeying for position

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here has been renewed discussion recently about the Shanghai Stock Exchange’s plan to launch an international board, on which foreigninvested companies could go public and raise RMB funds. While Shenzhen’s Growth Enterprise Board is still the immediate focus for investor attention, the prospect of an international board in Shanghai is increasingly on the minds of market participants. Even without any rules and regulations in place, the plan has already attracted interest from many overseas-incorporated companies, many of whom are large red chips such as China Mobile, Lenovo and CNOOC. Leading international financial institutions such as HSBC, Bank of East Asia and Standard Chartered are also keeping their ears close to the ground. HSBC stated that it would like to be the first foreign bank to list in Shanghai if the authorities allow, and is working toward that goal.

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A Shanghai listing would consolidate HSBC’s brand influence, raise funds for expansion in the mainland market and widen its shareholder based.Law firms are keenly aware of this interest, as they are the first port of call for those companies seeking preliminary discussion and study. “We’ve been contacted by a number of clients to conduct initial studies and gather information about the process,” said Zhao Xiaohong, a partner with King & Wood in Shanghai.

“Some of them are large multinational companies with considerable business interests in China, and some are red-chip companies. China’s stock market has a high level of liquidity and trading volume. The vast pool of institutional and retail investors and high average price-to-earnings ratios are very attractive to many foreign companies,” she said. Raising funds will be only one of many reasons for foreign companies to seek a Shanghai listing.

►► Red-chips to be first

From a legal point of view there will be no difference in technical requirements and rules between foreign companies’ listings and red-chip companies’ listings on the international board. However, many lawyers expect that allowing large “red-chip” companies to list on the board will be the first step in the process. “Red-chip companies are foreign incorporated and listed overseas, but their main business and controlling shareholders are based in China, so it’s natural for them to want to return to their ‘home’ market,” said Freshfields’ Antony Dapiran. “Politically, it’s more appropriate first to allow red-chip companies to float on the new international board.” “Many red-chip clients, including large SOEs and mid-sized companies from the private sector, have shown strong interest in returning to the domestic market and listing on the international board. But it’s more likely for the large and strong-performing red-chip companies to be listed first,” said King & Wood’s Zhao Xiaohong. ISSUE 6.10


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Freshfields’ Shanghai partner Antony Dapiran noted that the strategic importance of the mainland market is an important reason for foreign companies to go public here. According to Dapiran, Freshfields have also received queries from a number of foreign companies expressing interest in listing in Shanghai. Concerns and expectations Shanghai’s commitment to becoming an international financial hub is clear, but its journey has just begun. Besides its obvious attractiveness, industry observers have also brought up their concerns about the success of the international board. “Shanghai is undoubtedly an important place for companies that wish to raise RMB funds and raise their profiles in China. But as an international financial centre, Shanghai is still a long way behind Hong Kong,” said Freshfields’ Dapiran. “Transparency and predictability of the legal system is the cornerstone of any international financial centre. Fundamentally, until foreign exchange controls are lifted, there is zero scope for Shanghai to be a real international financial centre.” Dapiran pointed out that the dominance of retail investors is a main problem of the A-share market, which leads to a great amount of volatility in the share prices and trading. “What the Shanghai market doesn’t have yet is a large, stable and sophisticated base of institutional shareholders, who not only help ensure a stable and orderly share market but also raise the standards of information disclosure and corporate governance of the listed companies,” he said. “The launch of the international board may contribute to solving this problem.” The new board will also post some challenges for potential issuers and their lawyers. “It’s important – yet very challenging – for foreign companies to understand and adapt to the Chinese legal system, business culture, way of thinking, regulatory process and code of conduct,” said AllBright’s corporate partner Bao Fangzhou. “On the other hand, domestic lawyers and other service providers will have to be able to work closely with their foreign counterparts, follow www.legalbusinessonline.com

international standards and norms, and understand the business and legal system of all the jurisdictions in which the foreign company operates in.” Lin Zhong, a director and partner of Chen & Co, a firm that has advised on many domestic company listings overseas, said one of the main obstacles lay in the differences between Chinese and foreign legal systems, especially with respect to company and security law. “There are significant differences between PRC and foreign law in these areas, especially with respect to the scope, intent and interpretation of related legislation and the legal practice of firms,” he explained. “So we think issuers, legal advisors and the relevant authorities will need time to thoroughly understand these differences and develop suitable practices.” Challenges aside, lawyers believe the launch of an international board will benefit the service industries and domestic capital markets.

“As the international board will attract additional foreign businesses and financial entities to China, particularly Shanghai, we expect our other legal practice areas, such as general corporate practice and M&A and investment practice, to benefit along with the increased business of our capital market practice,” said Lin. All discussions and actions will remain preliminary, however, until the regulators actually issue the detailed rules and timetable regarding the setup of the board and its operations. There is hope, though. “If the regulations and requirements governing the international board listings meet international standards and harmonise with those of other leading jurisdictions, the board will contribute greatly to Shanghai’s goal of becoming an international financial centre and influence domestically listed companies in all positive ways,” said AllBright’s Bao. ALB

追逐上海的国际化之梦

期,上海证交所推出国际板的计划再次引起业 界热议,该板块将允许外商投资企业上市,并 筹集人民币资金。深圳创业板目前仍是投资人和企 业关注的焦点,但国际板的前景已经日益引起市场 参与者的关注。 尽管目前尚未任何成形的监管法规,该计划已经引 起众多海外企业的关注,还包括中国移动、联想和中 海油等大型红筹股公司,以及汇丰银行、东亚银行和 渣打银行等跨国金融机构。 汇丰银行在一份声明中指出,“如监管机构允许, 汇丰银行希望成为在上海上市的首家外国银行,将 积极努力实现该目标”。汇丰认为,在上海上市可整 合汇丰银行的品牌影响力,为扩大中国市场份额筹 集资金,进一步拓宽股东基础。 律师事务所亦率先捕捉到该市场需求,可为有意进 行初步探讨和研究的客户提供最及时的服务。 金杜上海办公室合伙人赵晓红表示:“目前已有多 位客户与我们联络,咨询和商议初步可行性研究, 并收集与流程相关的资料。其中部分客户是大型跨 国公司,在中国拥有重要市场份额,有些则为红筹 股公司。” 赵晓红认为:“中国股票市场的流动性和交易量较 高。市场聚集大量机构和散户投资人,平均市盈率 较高,对诸多外国公司极具吸引力。” 但是,筹集资金只是大量外国公司希望赴上海上 市的众多原因之一。富而德律师事务所上海合伙人 Antony Dapiran 指出,中国大陆市场的战略重要性是 外国公司希望赴上海上市的一个更重要原因。

担忧和期望

上海致力于成为国际化金融中心的目标十分明确, 但漫漫征途才刚刚开始。尽管市场极具吸引力,行 业观察人士亦不断表达对国际板成功的关切。 Dapiran 认为:“对于希望筹集人民币资金并提升中国 市场形象的企业而言,上海无疑具有重要意义。但作 为国际化金融中心,上海仍远落后于香港。法律体系 的透明度和可预见性是所有国际化金融中心的基石。

就最根本的问题而言,只要不放开外汇管制,上海就 不可能成为真正意义上的国际化金融中心。” Dapiran 继续指出,散户投资人主导市场是 A 股的主 要问题,从而导致股价和交易量波动较大。他认为:“ 上海目前尚不具备大规模、稳定且专业的机构投资人 基础,这些投资人不仅有助于确保股市稳定,还有助 于提高信息披露和上市公司企业管治的标准。但启动 国际板似乎有助于解决上述问题。” 国际板的推出亦可能为潜在的发行人及其律师带来 全新挑战。锦天城律师事务所证券业务合伙人鲍方舟 表示:“最主要的挑战是如何在中外不同法律体系、 不同文化的背景下顺利合作。就像初来投资的外商, 要习惯中国政府的思维习惯,熟悉中国人的文化,来 国际版也要逐步熟悉中国的证券市场,中国的监管方 式和流程,中国中介机构的工作习惯等。” 瑛明律师事务所合伙人林忠曾为多家国内公司的海 外上市项目提供顾问服务,他认为主要障碍在于中国 和国外法律体系的差异,尤其是公司和证券法方面的 差异。他表示:“中国和外国法律存在显著差异,在 相关立法的范围、意图和阐释以及律师事务所法律实 践方面的差异尤其突出。因此,我们认为,发行人、 法律顾问和相关监管机构须用足够的时间全面了解差 异,然后制定可行的实践方法。” 尽管存在挑战,律师普遍认为,启动国际板对服务 行业和国内资本市场大有裨益。林忠表示:“由于国 际板将吸引更多外国企业和金融机构进入中国,尤其 是上海,我们预计,除事务所的资本市场业务将增加 外,一般公司业务、并购以及投资等领域的业务亦将 随之增加。” 不过,在监管机构发布与国际板相关的详细规则和 时间表之前,所有讨论和行动仍将停留在初步层面。 不过就现在而言,至少所有人都能心怀希望。 鲍方舟表示:“如果设立了国际版,并且与之配套 的法律监管、货币兑换、信息披露等都同时与国际 接轨,则可以在多方面推动上海迈向国际金融中心 的目标。来国际版上市的公司也会影响和推动A股国 内企业。”

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Analysis >>

Recent loan transactions ►► loan facility for China Everbright International Value:US$200m Firm: Paul, Hastings, Janofsky & Walker Client: China Everbright International Firm: Allen & Overy Client: Asian Development Bank • Loan will be used to finance various waste-toenergy projects in various cities across China. It marks ADB’s first private-sector municipal solid waste management project.

►► loan facility for sino-ocean land holdings Value:US$700m Firm: Paul, Hastings, Janofsky & Walker Client: Sino-Ocean Land Holdings Firm: Baker & McKenzie Clients: Bank of China and China Construction Bank • This was a syndicated loan from a syndicate of 19 banks. Bank of China and China Construction Bank were the mandated coordinated arrangers.

Bank loans back in fashion Encouraged by the central government, PRC banks are coming back with a vengeance and are eager to lend again

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usinesses have had a hard time obtaining credit following fallout from the GFC but PRC banks are opening their loan books once again. Facing a sluggish global economy, China’s central government has introduced policies to stimulate the economy and stoke domestic demand. The fuel for all of this consumption is bank loans, and lots of them. Credit is back in fashion in China. Encouraged by the central government stimulus, PRC banks are gaining confidence in borrowers and their projects. ICBC reported a growth rate of 19.3% in RMB loans in the first half of this year – higher than the same period in past years. Similarly, China Construction Bank also reported a 19.3% growth (an increase

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of RMB731.41bn) in total loans and advances in the first half of 2009. Partner in the Beijing office of Paul Hastings, Joel Rothstein, said that he has definitely noticed an increase in loan transactions, not with the traditional international financial institutional players. “PRC banks are taking up the slack and filling the gap for those loans which were previously provided by international financial institutions,” he said. International financial institutions, meanwhile, are now experiencing a reduction in activity as they are restricted by credit issues and policies on a global scale. “Foreign banks are having a tough time compared to domestic banks because the domestic banks are moving money very quickly.”

►► Chinese project financing in Greece Value:£339.4m Firm: Fortsakis, Diakopoulos, Mylonogiannis & Associates Client: COSCO Pacific and Piraeus Container Terminal SA Firm: PC Woo & Co Client: China Development Bank Firm: Zhong Lun Client: China Development Bank Firm: Karatzas & Partners Client: China Development Bank • China Development Bank’s first project financing in Greece/Europe. The financing relates to a £4.3bn 30-year concession secured by Piraeus Container Terminal SA to develop and operate two piers at the Port of Pireaus in Greece.

said Rocky Lee, partner in the Beijing office of DLA Piper. “The velocity of money is faster with domestic banks and the other thing is that the domestic banks are seeing the better deals with real assets to back the loan… I ISSUE 6.10


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haven’t seen a foreign bank closing a deal of late but I have seen a lot of closings with domestic banks.” With the financial crisis still lingering and the harsh Rocky Lee lessons of the credit DLA Piper crisis firmly imprinted on the global psyche, lawyers and banks are now more vigilant than ever. “When things were hot, people weren’t so concerned,” Rothstein said. “People are more careful this time around.” And despite their willingness to lend, Rothstein has noticed that PRC banks are now closely examining loan-to-value ratios (LVRs) and sponsor guarantees. Lee has also witnessed a

for the legal department to control risks and ensure compliance… The current market conditions have put the department’s skills and ability to balance risk management and business development to the test,” said Cheng Meifen, who is the manager of CCB’s legal department. It is also crucial that law firms are aware of developments in the market, as inhouse legal counsel in companies on the Michelle Hung receiving end of bank COSCO Pacific loans will be guided by their knowledge. “External legal counsel may advise a number of clients on the same type

“Chinese banks have become more aggressive. They are seeing [the downturn] as an opportunity to position themselves strategically” Michelle Hung, COSCO Pacific

similar change. “Historically, we were happy to look at cash flow, intangibles or intellectual property. There is more focus on fixed assets,” he said. In Lee’s experience, PRC banks haven’t managed risk by requesting additional covenants; they want additional collateral. Another interesting development is the use of change-in-circumstances clauses in loan contracts. These clauses are used to protect the bank in the event that there is a sharp and sudden change in the market leading to an increase in the cost of lending money. David Liu of Jun He has been drafting contracts for 20 years and never used a change-in-circumstances clause until the global crisis hit. “It has stirred quite a lot of argument in the past year,” says Liu. Given the fast pace in growth and the eagerness of banks to lend, in-house legal counsel for PRC banks are now faced David Liu with new challenges. Jun He “Commercial banks are encouraged to provide loans to business, but it adds more difficulties www.legalbusinessonline.com

of transaction so they know what are reasonable terms and conditions. As in-house counsel you always have to assist management make decisions, not just on legal points but on commercial issues as well. So it’s very important that external legal counsel give you an insight on what’s happening in the market,” Michelle Hung, general

counsel for COSCO Pacific, said. Whether this increase in activity will be maintained is a question not yet answered. The central government loosened restrictions on lending in China, on the basis that an increase in funding would assist with an eventual economic recovery. Is there a danger that this may be a phantom recovery if lending is not directed prudently? “I’m more concerned about where the money is going, in terms of sector, because it can trigger unintended consequences,” DLA Piper’s Lee said. “I think that if the money is going to industry or manufacturing, that’s great, because that is what China needs to stabilise its economy and GDP growth; but [if it is] going to real estate, which is more speculative, triggers alarm bells for me” Regardless, transactions with PRC banks are keeping lawyers busy in China, during a period where the global economy is in a fragile state. “Chinese banks have become more aggressive,” Hung said. “They are seeing [the downturn] as an opportunity to position themselves strategically.” “Over the long haul, PRC banks are going to be a lot more significant than they were previously… PRC as a country is getting a lot wealthier so this money has to be invested somewhere,” said Barry Cheng, a partner in Baker & McKenzie’s Hong Kong office. ALB

国内银行信贷业务一枝独秀 在

全球经济低迷的背景下,中央政府推行全新政 策,努力刺激中国经济和扩大内需。扩大消费 的动力何在?自然是银行贷款,而且是巨额贷款。 目前,外资银行放贷仍然谨慎,但在政府经济刺激 计划的鼓励下国内银行则积极放开信贷,在一些领域 中占领更多市场。今年上半年,中国工商银行的人民 币贷款增幅达19.3%,超出往年同期水平。与之类似, 中国建设银行在2009年上半年的贷款增幅达19.3%,合 计贷款增量达7,314.1亿人民币。 普衡律师事务所北京代表处合伙人 Joel Rothstein 表示,他已明显感受到贷款交易的增加,但传统的 跨国金融机构并未参与其中。他表示:“中国银行正 积极填补贷款空缺,而此类贷款以往多由跨国金融 机构提供。” 与此同时,跨国金融机构在全球范围内受到信贷 问题和政策的制约,正面临业务收缩的窘境。欧华 律师事务所北京代表处合伙人 Rocky Lee 表示:“ 与国内银行相比,外国银行目前举步维艰,因为 国内银行的资金充裕,周转十分迅速,他们可把握 有利业务机会,用实际资产提供贷款抵押… 目前

尚无外国银行成功完成交易,但却有诸多国内银行 成功交易。” 鉴于全球金融危机余波未尽,信贷危机的教训仍在 全球范围内令业界心有余悸,律师和银行目前比任何 时候都更为谨慎。Rothstein 表示:“市场风头正盛之 时,人们不会如此谨慎。而眼前整个行业都小心翼 翼。”Rothstein 注意到,尽管国内银行的放贷意愿强 烈,但他们都会认真审查贷款价值比和担保条件。 Lee还主要到一种趋势变化。他表示:“以往我们更乐 于关注现金流、无形资产或知识产权。现在则尤其注重 固定资产。”根据 Lee 的经验判断,中国银行没有通过 签订额外契约管理风险,而是要求额外提供担保物。 在贷款合同中加入条件变化条款是另一个值得关注 的动向。如遇市场环境骤变,导致贷款成本增加,此 类条款可保护银行利益。君合律师事务所的刘大力律 师在起草贷款合同领域拥有20年经验,在全球金融 危机袭来之前,从未使用过条件变化条款。刘大力表 示:“去年,该条款曾引发业界的激烈争论。” 去年四季度以来,为进一步贯彻落实国家出台的一 系列政策措施,商业银行信贷进入了一轮快速投放

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期。商业银行信贷业务合同法律风险防范任务也更加 艰巨。中国建设银行总行法务部经理程美芬表示:“作 为银行法律部门来说,既要保障各项业务的依法合规、 保证所有业务合同的法律风险最低化;又要保障建设 银行各项业务能够长久的可持续发展。是否能够处理 好风险防范与业务发展之间的平衡关系,考量着法律 合规部门及工作人员的工作能力与水平。” 律师事务所了解市场发展动向亦十分重要,他们须 借助自己对市场的了解,为借贷企业的内部法律顾 问提供支持和帮助。中远太平洋总法律顾问 Michelle Hung 表示:“外部法律顾问在各种银行贷款交易中有 更加丰富且全面的经验,因而熟知合理的条款和条 件。而内部法律顾问须协助管理层作出决策,工作内 容不仅涉及法律问题,还涉及商业问题。因此,内部 律师应寻求外部法律顾问的指导意见,了解市场动 向,这十分重要。” 信贷增长的趋势是否将继续保持尚无定论。由于增 加资金投放可推动经济复苏,政府放宽中国的信贷限 制。但如果不审慎指导信贷投放,这种经济复苏是否 会昙花一现? Lee 表示:“我更关注新增信贷流入哪些行业,因为 资金去向可引发意想不到的后果。我认为,如果资金流 向工业或制造业,定会收到很好的效果,因为这正是中 国稳定经济和 GDP 增长所亟需的推动;但如果流入房 地产领域,导致地产过度投机,应引起警惕。” 无论怎样,在全球经济仍脆弱不堪的背景下,国内 银行放贷力度加大将促使中国律师业务繁忙。Hung 表示:“中国银行在扩张业务时更为积极。他们将经济 低迷视为扩大全球市场份额的良机。” 贝克•麦坚时律师事务所香港合伙人 Barry Cheng 表 示:“就长远来看,中国银行的地位较之以往有显著提 高… 随着中国的国力和财富日渐增长,资金必然会寻 求更多投资渠道。”

Analysis >>

Precedents for future merger clearance Two new decisions made by MOFCOM on foreign-to-foreign deals demonstrates the regulator’s willingness to intervene

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veryone in China has good reason to celebrate in October: it is the country’s 60th anniversary. And a merger clearance decision made by MOFCOM has given King & Wood and Clifford Chance an extra reason. MOFCOM has given conditional clearance to Pfizer’s US$68bn acquisition of Wyeth (both are pharmaceuticals companies) on antimonopoly grounds. Pfizer were advised by a King & Wood team, led by senior

partner Susan Ning, and a team of Clifford Chance lawyers, headed by Beijing-based counsel Ninette Dodoo, on antitrust issues. “The clearance is an important milestone for Pfizer’s merger with Wyeth, and also tells us a lot about the continued development of China’s competition procedures,” said Ninette Dodoo, who relocated to Beijing from Brussels earlier this year to head up CC’s anti-trust practice in China. Now the transaction has received

Regional IP Counsel Headquartered in the United States, our client is a leading global provider of customised technology solutions and high performance materials that are used primarily in the automotive, architectural, transportation and industrial sectors. Continued growth in Asia has led to the creation of a new role.

Shanghai Based ◆ Asia Pacific Responsibilities ◆ Newly Created Role Reporting to an overseas based head of intellectual property, you will advise management on all aspects of intellectual property matters affecting the Company’s regional operations. With the support of external counsel, you will manage enforcement activities and litigation matters as well as ensure the internal, regulatory and statutory compliance of patent, trademark and domain names. Additionally, you will provide support on the drafting, negotiation and execution of global IP-related contracts and licenses that impact the Company’s businesses in the region. You will also provide internal training to management on regional IP laws and practices.

To qualify, you will be an experienced IP practitioner qualified in either Singapore, Hong Kong or the PRC. Ideally, you will have prior experience working in a US or European multinational corporation and/or leading international law firm. Strong regulatory experience and exposure to regional authorities including the Chinese Government is required. A background in chemistry, chemical engineering or a similar discipline is strongly preferred. In addition to being a team player with strong people management skills, you will be fluent in both English and Mandarin (both spoken and written). Proficiency in an additional Asian language would be advantageous.

To apply for this position, please go to www.michaelpage.com.hk/apply quoting reference number H448630 or call Annie Tang on (+852) 2530 6100 for further details. Data collected will be used for recruitment purposes only.

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ISSUE 6.10


Firm Profile

NEWS | analysis >>

Lee and Li

Dawn of New Era for Cross-Strait Financial Sectors – Forthcoming Financial MOU between China and Taiwan

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he recent Taiwan cabinet reshuffle of Administration of President Ma Yingjeou in early September 2009 did not damp the enthusiasm for signing an Memorandum of Understanding (“MOU”) between China and Taiwan on supervision cooperation in financial sectors across the Taiwan Strait. Though no definite timetable is available at this stage, major players in financial markets on both sides reckon that this would happen in the coming months or early next year. The breakthrough is expected to thaw the long frozen relation between financial industries of both sides in nearly 60 years since 1949. Signing the MOU would enable Taiwan and China to jointly supervise financial institutions, set up a cross-strait currency clearance and settlement mechanism, facilitate capital flow across the Taiwan Strait and allow financial institutions to establish branches in each other’s market. The market liberalization for financial institutions located in China and Taiwan would promote efficiency and enhance competiveness of the financial markets on both sides, and facilitate cross-strait financial products innovation. Also, more joint ventures, merger & acquisition transactions, and organic growth and business expansion activities would be booming after the MOU is executed. Since the success in presidential election of President Ma Ying-jeou in March 2008 unfreezes the frosty cross-strait relation, there have been three rounds of talks between the Taipei-based Strait Exchange Foundation and the Beijing-based Association for Relation Across the Taiwan Strait, the private communication channels for the two governments, in June 2008, December 2008 and April 2009. The third round held in April 2009 in Nanjing, China was the first time in 60 years for both sides to discuss cross-strait cooperation in financial markets. Among consensuses reached in this talk, both sides agreed to sign the MOU for the banking, securities and futures and insurance industries as soon as possible. As the signing of the MOU is approaching, however, some legal obstacles remain and new cross-strait financial regulations are not ready. For instance, the qualifications and the number of the cross-strait players to be approved by the financial regulators of both Taiwan and China have not been announced since the size of the financial markets in China is much bigger than

www.legalbusinessonline.com

those of Taiwan. The scope of the permitted Renminbi (RMB) and New Taiwan dollar (NTD) related financial services is another focus of the financial industries on both sides. These issues would not be clarified and settled until the MOU is signed. Taiwan, known for its well-developed hightech industry, strong global network of Taiwanbased corporations and entrepreneurs, West and East-bridged society, Chinese culture-driven business operations expertise, and high-quality human resources across financial sectors, may become an attractive venue for financial institutions in China. Mainland China, an eyecatching growing economy in the emerging markets, even more so since the Lehman bankruptcy, has large and developing financial markets, and would be another virgin island for the over-crowded Taiwan financial industry. The cross-strait flow of capital, information and human resources through closer and more comprehensive cross-strait cooperation after signing the MOU would foster great prosperity in the Asia-Pacific region. Before signing the MOU, some Taiwanese financial institutions have expanded their operations in China. Cathay Life Insurance Co., Ltd., a leading and reputable insurance company in Taiwan, established a joint venture, Cathay Life Co., Ltd., with China Eastern Airline Group in 2005. Following Cathay’s model, Shin Kong Life Insurance, Taiwan Life and Cathay Century Insurance also established their joint venture insurance companies in China. In addition, the first banking M&A transaction across the Strait was by Fubon Financial Holding Co., Ltd., through its subsidiary in Hong Kong, Fubon Bank (Hong Kong) Limited, acquiring a 19.9% stake in Xiamen City Commercial Bank in December 2008. Meanwhile, with more Chinese tourists visiting Taiwan since more friendly regulations were announced by the Taiwan government, Taiwanese stores have started accepting the bank cards issued by China Unionpay Co., the leading bank card association with more than 240 bank members in China, for payment by Chinese tourists in Taiwan. Unfortunately, so far no financial institution from China has set up a joint venture or acquired any shares in any Taiwanese financial institution due to the strict restrictions imposed by Taiwan government prior to 2008. The immediate advantages for Taiwan financial sectors after the MOU is signed include that the representative offices of eight

Robin Chang

Taiwanese banks in China, including Land Bank of Taiwan, First Commercial Bank, Hwa Nan Bank, Chang Hwa Bank, Taiwan Cooperative Bank, Chinatrust Commercial Bank, Cathay United Bank and Mega Bank, are expected to be upgraded to banking branches in China. The Qualified Domestic Institutional Investors (“QDII”) in China, including mutual funds, would be allowed to invest in Taiwan listed shares, after Taiwan and China sign the MOU. This would boost capital inflow to Taiwan stock market, which would be good news for local investors. In addition, according to local media, some leading and reputable Chinese banks are interested in setting up branches in Taiwan. High-quality legal services are essential for financial services providers on both sides to enter the New World after the MOU is available. Lee and Li, Attorneys-At-Law, one of the leading law firms in Taiwan, is assisting some financial institutions in both Taiwan and China to explore business opportunities in these new markets, including setting up local presence, forming joint ventures, studying financial products and structuring M&A transactions. Given the blessing of the impending MOU, the people in both sides may be witnessing the beginning of a new era for cross-strait financial sectors.

Written by Robin Chang Partner and Head of Banking Practice Group Lee and Li, Attorneys-At-Law 7 F, No. 201, Tun-Hua N. Road, Taipei, Taiwan Tel: 886-2-27153300 ext. 2208 | Fax: 886-2-25149841 E-mail: robinchang@leeandli.com

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NEWS | analysis >>

clearance from China, EU and Australia, Dodoo expects the deal to reach closure soon. Cliffords has been engaged by Pfizer to act as international counsel and coordinator on competition filings for the Wyeth merger in all territories – apart from the US and Canada. The firm has advised on the competition aspects of Pfizer’s last three major transactions. This is the second conditional clearance on which Clifford Chance has advised since the Anti-Monopoly Law was introduced in August 2008. The first one CC’s advised on was the InBev/Anheuser-Busch transaction. So far, the firm has advised clients on more than 20 applications, most of which have been cleared by the Chinese regulators without conditions. Reviewing the regime’s development over the past year, Dodoo said that China is moving in the right direction and is quickly establishing itself as an important anti-trust regime. “MOFCOM has just begun reviewing merger control applications in a modern sense, so it’s still a very new regime. But MOFCOM should be congratulated that they’ve had to deal with a number of high-profile global transactions, and they’ve shown themselves to respect international norms and rules,” Dodoo said. “China is moving in the right direction. Although there is still a lot to learn, the regulators have the necessary will and resources to be able to move ahead in their desire to become one of the more important jurisdictions when it comes to merger control.” Only one day after the Pfizer/Wyeth decision, MOFCOM also approved General Motors’ re-acquisition of the assets of Delphi, a bankrupt car-parts manufacturer, under certain conditions. Freshfields’ competition partner Michael Han in Beijing said these two decisions to impose conditions on foreign-toforeign deals demonstrates MOFCOM’s willingness to intervene in cases that give rise to local concerns in China. Companies engaging in international M&As should not underestimate the China merger-control process – particularly where there are local interests involved. “These decisions clearly demonstrate MOFCOM’s appetite for intervention in cases that raise ‘local issues’ in China, be it from 16

an anti-trust angle or industrial policy perspective,” said Han. “Chinese competitors and customers are increasingly vociferous in signaling their concerns, knowing that MOFCOM will attach considerable weight to their views in its review. Merger clearances are no longer a straightforward process in China and companies engaging in international M&As will need to be sensitive to local concerns in the China merger review process,” he added. ALB

Analysis >>

中国反垄断审查 全球影响力扩大

秋10月,全国上下都在为新中国成立60周年 的华诞欢庆。中国商务部针对一项全球合并 交易作出的反垄断审查决定令金杜和高纬绅又多了 一个庆祝的理由。 针对辉瑞以680亿美元收购惠氏(双方均为制药公 司)的交易,中国商务部出于反垄断考虑给予有条件 许可。高级合伙人宁宣凤带领的金杜律师团队和高纬 绅北京办事处顾问律师 Ninette Dodoo 带领的律师团 队为辉瑞提供反垄断顾问服务。 Ninette Dodoo 于今年初由布鲁塞尔调至北京工作, 担任高纬绅中国反垄断业务主管,她表示:“该许可对 辉瑞与惠氏的合并具有里程碑式的重要意义,同时还 表明中国反垄断审查流程的进一步发展。”目前,该 交易已经在中国、欧盟和澳大利亚获得许可,Dodoo 预计交易很快将最终完成。 高纬绅为辉瑞在法垄断和竞争法方面的主要国际法 律顾问并协调其惠氏并购交易在主要司法管辖区(除 美国和加拿大外)的反垄断审查事务。高纬绅曾为辉 瑞近三次重大并购交易提供竞争法方面的顾问服务。 自2008年8月《反垄断法》施行以来,这是高纬绅提 供顾问服务获得的第二次有条件许可。第一次为 InBev/ Anheuser-Busch 的合并交易。到目前为止,高纬绅已 经就20多宗合并申请为客户提供顾问服务,其中多数 获得中国监管机构的无条件许可。 回顾中国过去一年的发展历程时,Dodoo 认为,中 国正朝正确的方向稳步发展,并逐渐成为全球更重要 的反垄断司法管辖区之一。她表示:“中国商务部在 真正意义上的并购反垄断审查实践才刚刚起步,因此 仍是较新的体制。但商务部已经成功处理多宗重大全 球交易,他们充分体现出对国际惯例和规则的尊重, 值得祝贺。” 她补充道:“中国正朝正确方向迈进。尽管还有很 多经验需要学习,监管机构已经具备必要的意愿和 资源,决心在并购反垄断审查方面成为重要的司法管 辖地之一。” 在作出辉瑞/惠氏并购裁决仅一天后,中国商务部又 有条件批准通用并购德尔福的全球并购交易。 富而德北京代表处竞争业务合伙人 韩亮认为,对境 外企业之间的并购交易给予有条件许可,表明商务部 愿意就引起中国本土市场关切的域外交易予以干预; 参与国际并购交易的公司不应低估中国的法垄断审查 制度,在涉及中国本地市场利益的情况下尤其如此。 韩律师表示:“这两项裁决清楚表明,对于影响到 中国本地市场的并购交易,中国商务部愿意积极干 预,无论从反垄断角度出发,还是从行业政策角度出 发。并购反垄断审查在中国已不再是简单直接的监管 流程,在中国反垄断审查过程中,参与跨国并购的企 业们须对与中国本地市场相关的因素给予更多考虑和 高度关切。”

Capital markets: return of the IPO US, China and Hong Kong law firms have pulled off the secondlargest IPO seen world-wide in 2009. Expect more soon...

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he flood of IPOs that law firms are advising on at the moment signals the return of vibrant capital markets in Greater China. In an extreme case, Clifford Chance advised on four IPOs on the HKSE in one week in September. Equally busy are some of the leading PRC capital markets firms. Beijing’s JiaYuan, for example, has recently acted for the issuer in the “A + H” IPO of Metallurgical Corporation of China (MCC), one of the mainland’s biggest engineering and construction firms. MCC raised US$5.3bn in the world’s second-largest IPO seen so far this year. China State Construction Engineering Corporation’s US$6.2bn IPO in Shanghai remains this year’s largest IPO worldwide. In the past few months, JiaYuan has also been involved in the Shenzhen IPO of Accelink Technologies, the US$586m private share placement of Changjiang Securities, the US$1.7bn corporate bond issuance of China Communication Construction, and the IPO of China ISSUE 6.10


NEWS | news >>

Update >>

CIETAC COLUMN CIETAC推出网上仲裁服务

着互联网在中国的快速发展,电子商务迅速崛起,相应的电子商务纠纷也不断增加。《中华人民共和国电子签名法》的颁布实施以 及其他相关法律的制定,为中国电子商务的发展提供了法律基础。 中国国际经济贸易仲裁委员会(英文简称CIETAC)充分利用其网上解决域名争议的经验,针对快速解决电子商务纠纷及其他经济 贸易争议的实际需要,推出《网上仲裁规则》,该规则于2009年5月1日正式实施。《网上仲裁规则》与中国已经颁布实施的与电子商务有关的 法律、法规密切衔接,充分保证了网上仲裁与中国法律体系的兼容性。《网上仲裁规则》在“普通程序”之外根据案件争议金额大小分别规定了“ 简易程序”和“快速程序”,以真正适应在网上快速解决经济纠纷的需要。

CIETAC Provides Online Arbitration Service

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ith the rapid development of Internet in China, E-commerce grows up rapidly, and E-commerce dispute is continuously increasing. The Law of the People’s Republic of China on Electronic Signatures (the E-Signature Law), together with other relevant laws, provides the legal basis for e-commerce in China. In order to meet the needs of resolving disputes related to E-commerce and other economic and trade issues quickly, China International Economic and Trade Arbitration Commission (“CIETAC”) has drawn from its vast body of experience in online domain name dispute resolution and provided the “Online Arbitration Rules” (effective as from May 1, 2009). These Rules are closely related to laws administering electronic commerce previously enacted and implemented by the Chinese government, ensuring the compatibility of online arbitration with the existing legal system. Other than the “General Procedure”, depending on the size of the amount contested, the case may also be conducted according to the “Summary Procedure” or the “Expedited Procedure”, thus meeting the need of parties to resolve economic disputes quickly online.

www.cietac.org Add: 6/F, CCOIC Building, 2 Huapichang Hutong, Xicheng District, Beijing 100035, P.R.China Tel: +8610 82217766 | Fax: +8610 64643500

International Travel Service, to be launched in October in Shanghai. “It’s clear to us that the number of transactions we are working on has increased significantly since June this year. Many stopped projects have resumed and some new deals have been initiated,” said Liu Wen, a partner of JiaYuan who worked on the MCC public offering, together with lead partners Yan Yu and Xu Ying. Beijing firm Tian Yuan acted as PRC counsel for the underwriters in MCC’s IPO in Shanghai and Hong Kong. Tian Yuan has also had a busy August and September, advising on Everbright Securities’ A-share IPO and Shangyu Water Treatment Development’s corporate bond issuance. On the Hong Kong IPO of MCC, Slaughter and May and Davis Polk acted as the issuer’s Hong Kong counsel and US counsel respectively, while the underwriters (Morgan Stanley, Citi, CITIC and CICC) turned to Freshfields Bruckhaus Deringer and Shearman & Sterling for Hong Kong and US legal advice respectively. www.legalbusinessonline.com

“One of the most challenging aspects of the transaction was to coordinate the H-share offering on the Hong Kong Stock Exchange with the concurrent A-share offering on the SSE between two sets of regulatory requirements (including disclosure requirements), offering mechanics, market practices and even advisors,” said Davis Polk’s partner, Show-Mao Chen.

“This company has extensive overseas operations already,” said Benita Yu, a partner of Slaughter and May in Hong Kong. The deal was also notable for the complex organisational structure of MCC, which is a large industrial group with more than 400 direct and indirect subsidiaries operating in various industries in many countries. ALB

团队合作促成年度全球规模第二大IPO 最 近几个月,律所们日渐忙碌于为大量 IPO 项目 提供顾问服务,标志着大中华地区资本市场的 稳步复苏。以高纬绅为例,仅在9月底的一周内该所 就为香港联交所的四宗 IPO 交易提供顾问服务。 领先的中国资本市场律师事务所亦同样忙碌。以北 京嘉源律师事务所为例,该事务所作为发行人律师, 参与了中国中冶在 A 股和 H 股的 IPO 项目。中国中 冶是大陆规模最大的工程和建筑公司之一,通过香港 和上海的发行共募资53亿美元,成为今年为止全球规 模第二大的 IPO。中国中建在上海的62亿美元 IPO仍 为今年全球第一。过去数月内,嘉源还曾参与光讯科 技在深圳的 IPO 项目、长江证券5.86亿美元的定向增 发、中国交通建筑17亿美元的公司债券发行以及中国 国旅计划于10月在上海启动的 IPO 项目。 嘉源合伙人刘汶与牵头合伙人颜羽和徐莹共同参与 了中国中冶的 IPO 项目,他表示:“自今年六月以来, 我们参与的交易数目明显增加。诸多一度暂停的项目

已重新启动,部分新交易也已经开始运行。”北京天 元律师事务所在中国中冶的上市项目中担任承销商的 中国法律顾问。该事务所在8月和9月业务繁忙,曾为 光大证券的 A 股 IPO 和上虞水处理发展有限公司的公 司债券发售提供顾问服务。 达维合伙人陈硕茂表示:“由于香港联交所的 H 股 和上海证交所的 A 股是两套完全不同的监管体系(包 括披露要求)、发售机制、市场实践,需要在同时发 售时充分协调两地市场监管流程,这是此项交易中最 具挑战性的一面。” 中国中冶的复杂组织结构亦是此 项交易引人注目的地方。中国中冶是大型工业集团, 拥有400多家直接和间接控股的子公司,在多个国家 开展业务。司力达香港办事处合伙人 Benita Yu 表示 : “该公司已经拥有广泛的海外业务。我们的工作需要 完成大量海外公司的应尽职责审查,还需要与本地法 律顾问合作,从而得到正确的意见,完成必要的应尽 职责审查。

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NEWS | news >>

Beijing >>

Dacheng gains World Service Group membership and R ecent events have shown that Dacheng is pursuing international opportunities multifariously. The firm is expanding its global network – not only through entering strategic alliances with foreign firms and opening branch offices overseas but by also joining a global professional network. Dacheng has recently been admitted to the membership of World Services Group (WSG), a global association of professional business service providers such as accounting firms, law firms, and executive search firms. There are more than 130 member firms operating in over 115 countries including the US. Dacheng is currently the group's only member located in China and will be the only Chinese law firm member. As the nation emerges as an increasingly important market, more global legal associations are seeking members in China. And with PRC firms and their clients continuing to grow international business, joining global alliances becomes a more feasible and attractive option for firms’ business development. Gaopeng is another firm to recently join a global legal alliance: ALFA International.

Dacheng has also entered into a cooperation agreement with one of Israel's largest law firms, Shibolet & Co. As part of the agreement, Shibolet's China partner Amit BenYehoshua is now based in Dacheng's Shanghai office and serves as the main contact point for both firms. He holds a Master degree in Chinese law from Beijing’s Tsinghua University and is licensed to practice law in both California and Israel. ALB ►► World Services Group law firm members in Asia Pacific Firm

Jurisdiction

Cheok Sankaran Halim advocates & solicitors

Brunei

Deacons

Hong Kong

Kochhar & Co advocates & legal consultants

India

LCS & Partners

Taiwan

Lee & Ko

Korea

Makarim & Taira S.

Indonesia

Minter Ellison

Australia

Minter Ellison Rudd Watts

New Zealand

Stamford Law Corporation

Singapore

Sycip Salazar Hernandez & Gatmaitan

Philippines

Tilleke & Gibbins

Thailand

大成获 WSG 会员资 格;与以色列事务所 建立战略联盟

成律师事务所近期一系列举动表明,该事 务所正通过多种渠道积极把握国际业务机 遇。大成正努力扩大全球业务网络,不仅与外国 事务所建立战略联合,成立海外办事处,还积极 加入全球专业合作网络。 大成近期获全球服务集团(WSG)的会员资 格,该机构是专业服务提供商组成的全球协会, 涵盖会计师事务所、律师事务所和猎头公司。该 组织目前在美国国内和超过115个国家拥有130

IP >>

MWE China obtains patent filing license M

WE China Law Offices has obtained a license from the State Intellectual Property Office (SIPO), which allows it to represent both domestic and international clients in all aspects of patent matters. This is a major development for the firm’s IP practice group, led by founder and managing partner John Huang. The firm’s patent practice now covers the full spectrum of patent legal services – from filing and prosecution to patent litigation and patent portfolio management. In addition to the patent

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practice, it also advises clients on trademark, copyright, domain name, trade secret, anti-trust and unfair competition, and other IP issues. Strong growth in client demand for IP work means firms need to expand their IP practices, both in size and business scope. The past few months have seen many firms broaden the spectrum of their IP expertise and services – either through obtaining a license to handle patent matters or through establishing their own patent and trademark agency. Dacheng, for examples, has recently been granted a license to provide patent agency services, while Grandall has set up an IP agency in Beijing. ALB ISSUE 6.10


NEWS | news >>

Israel deal

uk report Lovells tie up with French firm Lovells recently formed a co-operation agreement with Paris-based insolvency boutique Kuntz & Associés which will allow the two firms (who have a history of working together) to form a closer bond, without entering into a full-scale alliance. The arrangement will also grant Kuntz access to Lovells’ full-service French practice and will permit Lovells to utilise Kuntz’s specialist insolvency expertise.

家会员机构。大成目前是该组织在中国的唯一会 员,将成为中国唯一的律师事务所会员。 随着中国市场的地位愈发重要,更多全球法律 协会正积极吸纳中国会员。随着中国事务所及其 客户不断扩大跨国业务,加入全球联合成为事务 所发展业务更为可行的渠道,极具吸引力。高 朋律师事务所近期也加入全球法律联合组织 — ALFA International。 大成还与以色列规模最大律师事务所之一的 西博雷特律师事务所签订合作协议。作为协议 的组成部分,西博雷特的中国合伙人 Amit BenYehoshua 现进入大成上海办事处工作,负责双 方之间的业务联络。Amit Ben-Yehoshua 曾就读 北京清华大学法学院,获中国法律硕士学位,并 获得美国加州和以色列的律师执业资格。

Herbert Smith raises bar on partner performance Herbert Smith has switched its former ‘make a difference’ initiative for partner appraisals to more formal assessments on their performance, in a bid to place more emphasis on the firm’s international ambition. The new system will include formal feedback from partners in international offices for the first time and assessments on matters such as cross-selling between offices. Partners will also be assessed annually against four distinct areas: client skills, technical skills, people skills and how their performance fits in with the firm’s strategy. The move to monitor partner performance more closely follows a change in the firm’s associate appraisal process, made earlier this year. It is a definite step away from the consensual approach introduced in 2007 by senior partner David Gold, clearly sending the message to partners that the expectations put upon them will be rising.

Clifford Chance elections approaching Clifford Chance will soon embark on a series of senior leadership elections. David Childs is expected to stand for re-election as the firm’s managing partner. If he is successful, his second four-year term at the firm’s helm would begin in May 2010. Other management positions soon to be up for grabs include London managing partner, the general counsel and practice head roles for real estate and tax departments, pensions and employment practice areas. Clifford Chance is reportedly also reviewing the position of global litigation and dispute resolution head, which became redundant after the May departure of Mark Kirsch to join global player Gibson Dunn & Crutcher. UK firms star in big business rankings The Hemscott rankings of legal advisers to FTSE 100 companies has revealed Linklaters and Slaughter and May as the firms currently advising the highest number (25) of the UK’s biggest companies. The rest of the top five is rounded out by Herbert Smith (which saw its FTSE 100 client count drop one from 19 to 18, as it is no longer listed as an adviser to Friends Provident), Allen & Overy (A&O) and Freshfields Bruckhaus Deringer. Freshfields recently gained two top-ranked clients (the London Stock Exchange Group and Wolseley) and is now running head to head with A&O, with 17 FTSE 100 clients.

元达获得专利申请执照

达律师事务所获得国家知识产权局颁发的 执照,可代表国内外客户处理专利申请相 关的各方面事务。元达的知识产权业务部门由创 始兼主管合伙人黄仲兰负责,该执照的获得是元 达业务发展的重要一步。 元达的专利业务覆盖专利法律服务的各个方 面,包括申请、专利诉讼和专利组合管理。除 专利业务外,元达还在商标、版权、域名、商业 秘密、反垄断、不公平竞争和其它知识产权领域 提供顾问服务。 鉴于知识产权法律服务的客户需求不断增长, 元达必须在团队规模和业务范围两方面提升知识 产权业务的服务能力。过去数月内,有多家事务 所积极扩大知识产权服务的内容,有些获得代理 专利事务的执照,有些则建立自己的专利和商标 代理机构。以大成为例,该事务所近期获得执 照,可提供专利代理服务,国浩则在北京建立 知识产权代理机构。

www.legalbusinessonline.com

 ROUNDUP

• Kiev partner Jared Grubb has replaced Nick Fletcher as managing partner of the Clifford Chance office. Fletcher will return to Warsaw, where he was managing partner prior to relocating to the Ukraine • Mayer Brown partner Gillian Sproul recently replaced Frances Murphy to head the competition and anti-trust group at the firm’s London office. Murphy led the City team for eight years and left for the London anti-trust practice at Jones Day • CMS Cameron McKenna recently pushed back the start dates for a handful of trainee solicitors, with the seven who were set to qualify on 1 September agreeing to defer their start dates by up to three months • Leading Spanish firm Garrigues, led by Madrid-based corporate restructuring partner Antonio Fernandez, recently launched a specialist restructuring & insolvency group, in response to data from Spain’s National Statistics Institute showing the number of formal insolvency orders has almost tripled compared to last year • Clifford Chance’s Amsterdam head Jan ter Haar has been named as the firm’s new Moscow managing partner, following the announcement that current incumbent Michael Cuthbert plans to retire at the end of the year. CC is also reportedly gearing up to overhaul its management structure in the region, with Moscow and Kiev to come under one remit and Bucharest, Prague and Warsaw under another remit

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NEWS | news >>

capital markets >>

Ten firms to act on first GEB listings

C

hina Securities Regulatory Commission’s newly formed issuance examination committee for Shenzhen’s Growth Enterprise Board (GEB) has approved the first 10 applications for IPOs on the new board. The seven companies plan to raise a total of RMB6.68bn, according to their filings with CSRC. Ten law firms based in Beijing and Shanghai have been engaged by these companies to advise on their GEB IPOs “After a decade-long discussion and preparation, the much-anticipated launch of the Growth Enterprise Market is finally within sight,” said Zhu Linhai, a senior partner with AllBright. Like many other firms, AllBright has kept an eye on the

progress of the establishment of a second board since the proposal was first put forward in 1999. “It is a significant step towards expanding the depth and width of the domestic capital

markets,” said Zhu. According to the regulatory commission’s statistics, 149 companies have submitted applications for IPOs on GEB, with a total value of RMB33.6bn. ALB

►► Growth enterprise board – approved ipos Issuer Shanghai Bestway Marine Engineering Design 佳豪船舶 Beijing Lepu Medical 乐普(北京)医疗器械 Qingdao TGOOD 青岛特锐德 Beijing Lanxum 北京立思辰 Nanfang Ventilator 南方风机 Beijing Ultr@Power 北京神州泰岳软件 Chongqing Lummy Pharmaceuticals 重庆莱美药业 Henan Hanwei Electronics 河南汉威电子 Beijing Toread Outdoor Product 北京探路者户外用品 Anhui Anke Biotechnology 安徽安科生物学工程

Legal advisor to issuer AllBright 上海锦天城 DeHeng Law Offices 北京德恒 Grandfield 北京国枫 King & Wood 北京金杜 Kingson 广东君信 Tian Yuan 北京天元 Zhongtian 北京众天 Xin Yang 广东信扬 Shang Gong 北京尚公 Tian He 安徽天禾

capital markets >>

Shanda general counsel expects more after NASDAQ IPO

S

handa Interactive Entertainment’s in-house legal team and their external legal advisors have been busy making deals over the past 12 months. Having advised the company on a US$175m issuance of convertible bonds and acquisition of a majority state in NASDAQ-listed Hurray!, the teams have now acted on the spinning off and listing of its online game business unit. Shanda Games, an online game developer, operator and publisher in China, has successfully launched the IPO of American Depositary Shares (ADSs), and has begun trading on the NASDAQ Global Select Market. The IPO, valued at US$1bn, is the largest of the year so far in the US. It is also the second Chinese online game company to list in the US this year, following Changyou.com’s IPO in April. “It’s been a long road to get here, and the result is very rewarding,” said Thomas Yih, the newly appointed general counsel of Shanda Games. Yih estimated that it took more than two years to complete the execution of the project since the decision to separate the business units was taken. A US-qualified lawyer, Yih previously served as the general counsel of

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Shanda Interactive Entertainment from October 2008 to August 2009. Prior to this he was an attorney at Morrison & Foerster in Shanghai and also served as senior counsel Thomas Yih for a New York and Hong Shanda Kong dual-listed company based in China. On the NASDAQ IPO of Shanda Games, Shanghai firm Jade & Fountain was the issuer’s PRC counsel, while Davis Polk &Wardwell acted as the issuer’s US counsel. The issuer also engaged Conyers Dill & Pearman for Cayman Islands legal advice. Joint bookrunners Goldman Sachs and JP Morgan were represented by Simpson Thacher & Bartlett and Commerce & Finance. As Shanda’s online game business also extends to other jurisdictions – including Singapore, Korea, Japan and Hong Kong – Yih and his in-house team has worked with law firms from those jurisdictions to complete the project. “Coordinating a large number of external counsel and handling a couple of transactions at the same time are very challenging,” Yih said.

His in-house team worked on the Shanda Games IPO and Hurray! acquisition simultaneously. With the proceeds from the offering, Shanda Games intends to fund possible future investments, joint ventures and acquisitions, meaning possible further mandates for its legal advisors. Some of the new ventures will be in overseas jurisdictions, according to Yih. “The past few years have been exciting, and the coming years will continue to be packed with activities and excitement as Shanda Games expands the global reach of its games. My new appointment is set to facilitate its international growth,” he said. ALB

盛大游戏法律总顾问预期 在IPO 之后会有更多并购

年,盛大网络内部律师团队和外部法律顾 问忙于完成多项交易。继为盛大发行1.75 亿美元可转换债券和收购纳斯达克上市公司华友 集团 (Hurray!) 大部分股权之后,现在又转向 筹备网络游戏业务的上市工作。 盛大游戏是中国的网络游戏开发商、运营商和发 行商,已经成功完成美国存托股份(ADS)IPO, 开始在纳斯达克全球精选市场交易。盛大游戏 IPO 价值达10亿美元,目前是美国今年规模最大的 IPO ISSUE 6.10


NEWS | news >>

十家律师事务所参与首 批创业板股票上市

1

0家企业的 IPO 申请获得中国证监会针对深市 创业板最新组建的发行审核委员会批准,成 为创业板首批上市企业。企业向中国证监会提交 的上市申请显示,七家公司计划融资合计达66.8 亿人民币。 计划上市的公司聘请十家律师事务所为创业板 上市提供顾问服务,包括北京的德恒、国枫、金 杜、天元、众天和尚公,上海的锦天城,安徽的 天禾,以及广州的君信和信扬。 锦天城高级合伙人朱林海表示:“历经十年的讨 论和筹备之后,备受期待的创业板启动终于见到曙 光。”与众多其它事务所类似,自1999年提案首次讨 论以来,锦天城始终关注二级板块的发展进度。朱 林海认为:“在推动国内资本市场的深度和广度发展 方面,创业板的启动是具有重要意义的一步。” 中国证监会的统计资料显示,目前已有149家 公司提交创业板 IPO 申请,合计融资价值达336 亿人民币。

项目。盛大游戏还是今年赴美上市的第二家中国网 络游戏公司,紧随四月的畅游 IPO 之后。 盛大游戏信任总顾问律师 Thomas Yih 表示:“ 我们历经漫漫征途才实现这一目标,结果令所有 人欢欣鼓舞。”Thomas Yih 是获得美国执业资格 的律师,2008年10月至2009年8月曾在盛大网络 担任总顾问律师。加入盛大之前,他曾于2007年 9月至2008年10月在美富上海办事处担任律师, 还曾在纽约和香港两地上市的中国公司担任高级 顾问律师。 在盛大游戏纳斯达克 IPO 项目中,上海九州 丰泽律师事务所担任发行人的中国法律顾问,达 维律师事务所担任发行人的美国法律顾问。发行 人还委托康德明律师事务所担任开曼群岛法律顾 问。盛信律师事务所和通商律师事务所分别担任 联合承销商高盛和摩根大通的法律代表。 Yih 估计,由于分离业务部门的决定已经做出, 该项目全部完成需要两年以上的时间。 由于盛大的网络游戏业务还拓展至其它地区, 包括新加坡、韩国、日本和香港,Yih 及其内部 律师团队还必须与上述地区的律师事务所合作, 确保完成该项目。Yih 表示:“在协调大量外部法 律顾问的同时,我们还必须处理各种交易事务, 着实挑战重重。”他的内部律师团队曾同时处理盛 大游戏 IPO 项目和收购 Hurray! 的项目。 盛大游戏将利用上市募集的资金进行日后业务 投资、参与合资项目并收购其它业务,意味着 其内部法律团队将承担更多艰巨任务。据 Yih 透 露,部分新投资项目将位于海外司法管辖地。他 表示:“过去几年里,我们的工作始终令人兴奋, 随着盛大游戏不断进行全球业务扩张,来年的工 作定将继续充满各种挑战和刺激。推动盛大游戏 实现全球增长正是我的职责所在。” www.legalbusinessonline.com

us report Dewey scores big in M&A Dewey & LeBoeuf’s corporate group recently secured two high-profile M&A mandates. Dewey M&A head Mort Pierce advised Disney on its US$4bn acquisition of Marvel Entertainment; and Richard Climan and Keith Flaum led a team advising eBay on the US$1.9bn sale of Skype. The firm won a role in both deals as the result of longstanding relationships, highlighting why Dewey has been among the more successful US firms during the downturn in deal flow. Mergermarket’s global M&A survey for the first half of 2009 recently revealed that the US firm moved up to 12th place from 25th in the global deals value table.

100 associates for its annual intake, as a result of the dismal economic climate. Skadden later informed successful candidates that their start dates would be deferred until 2011. The new figures are in stark contrast to the numbers the firm recruited for its 2009 program: 225 summer associates were accepted of whom 95% were offered full-time positions. The firm also implemented a ‘Skadden Offer Day’, where associates from its 2010 intake received their offers on the same day (22 September 2009). The firm will continue to give those who receive offers 45 days to evaluate them, in compliance with guidelines set down by the National Association for Law Placement.

White & Case steppes into Kazakhstan White & Case recently assisted the Kazakhstan government in the creation of new restructuring laws in the country, following the US firm winning a role advising UBS on the restructuring of Kazakhstan’s BTA Bank earlier this year. The firm also advised Goldman Sachs on the restructuring of Kazakhstan financial institution Alliance Bank. London-based European capital markets co-head Francis Fitzherbert-Brockholes led the advice team.

Kirkland & Ellis effect layoffs in NYC Kirkland & Ellis finally followed suit and joined the list of US firms to make mass redundancies. The firm laid off more than 20 associates in New York in September, following its annual performance review period, citing the turbulent economic climate as the cause. Kirkland had roughly 335 lawyers in the New York office prior to the cuts being made.

Skadden slashes summer associate intake Skadden Arps Slate Meagher & Flom recently decided to reduce the size of its summer associate intake for 2010, following a delay in the start dates of its 2009 group. The firm advised US law schools it would only be recruiting around

Brettle appointed to White & Case executive committee White & Case London head Oliver Brettle recently replaced New York partner Dimitrios Drivas on the firm’s executive committee. He will join Turkish partner Asli Basgoz and New York partner Anthony Kahn on the committee that works under firmwide chairman Hugh Verrier.

ROUNDUP • Willkie Farr & Gallagher and Paul Weiss recently scored lead roles on the US$2.6bn acquisition of US drugmaker Sepracor by Japan’s Dainippon Sumitomo Pharma (DSP) • Sonnenschein Nath & Rosenthal recently confirmed that the firm had made additional layoffs in September but declined to say exactly how many positions were eliminated • Partners Sarah Cogan and Laura Palma have become the first female partners to be elected to the executive committee at Simpson Thacher & Bartlett in the firm’s 125-year history. The election to the exclusive 12-member group is drawn by secret ballot with each partner having one vote • McDermott Will & Emery recently launched a private client practice in its London office, aligning the office with its New York counterpart. The practice focuses on wealth management for private companies, charitable institutions, private individuals and families and also works with the corporate and tax department teams

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NEWS | news >>

Update >>

Beijing >>

Regulatory China Strengthens Administration of Virtual Currency

O

n June 4, 2009, the Ministry of Culture (“MOC”) and the Ministry of Commerce (“MOFCOM”) jointly issued a Circular on Strengthening the Administration of Virtual Currency for On-line Gaming (the “Circular”). The Circular is intended to regulate the issuance and trading of on-line game virtual currency and indicates the government’s strong desire to strengthen supervision of the rapidly growing on-line gaming market in China. Pursuant to the Circular, virtual currency is a virtual exchange tool created by the on-line game operator and sold to game players to be used to exchange for on-line game services provided by the operator. It may be presented in the form of prepaid amount or points but does not encompass virtual items earned within the game world. An operator proposing to issue on-line game virtual currency (an “Issuing Operator”) or to operate a platform facilitating trades of on-line game virtual currency (a “Trading Operator”) must first qualify as an operational Internet culture entity and obtain approval from MOC. A Trading Operator should also satisfy MOFCOM’s requirements on the provision of e-commerce platform services. No entity may operate as both an Issuing Operator and a Trading Operator simultaneously. Operators that are already engaged in the on-line game issuing or trading services must, within three months upon the promulgation of the Circular, apply to the relevant culture administrative authority for approval. Those that fail to apply by the deadline will be investigated and penalized. The Circular also provides that virtual currency may be used to purchase services from the issuer only and must not be used to purchase real goods or exchange for products or services from any company other than the original issuer. Current industry practice where large game operators handle payment issues for games operated by smaller companies but require customers of such smaller companies to use virtual currency issued by the large operators appears to have been rendered illegal by the Circular. Following the issuance of the Circular, MOC also promulgated guidelines on July 23, 2009 setting forth application documents and procedures for Issuing Operators and Trading Operators (the “Guidelines”). According to the Guidelines, operators wishing to issue or trade virtual currency must now indicate such intent in the application form for Internet culture units formulated by MOC, and include in the feasibility study report information relating to the issuance of virtual currency or the operation of platform services, together with details of purchase methods, measures for safeguarding user rights and technology security measures. Written by Jeanette Chan, partner Stella Jiang, associate Paul, Weiss, Rifkind, Wharton & Garrison Unit 3601, Fortune Plaza Office Tower A No. 7 Dong Sanhuan Zhonglu Chao Yang District, Beijing 100020 PRC Email: jchan@paulweiss.com Ph: (8610) 5828-6300 or (852) 2846-0300

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CIC commodity spree continues C

hina Investment Corporation (CIC) has announced two separate investments in two days totaling US$2.75bn. CIC revealed recently it would be increasing new overseas investment in 2009 by more than ten times last year’s figure of US$4.8bn. The fund has taken over US$1.9bn of debt from Indonesia’s largest coal producer, PT Bumi Resources, which has revived Bumi’s capital expenditure and its implementation of growth strategies. This investment is in the form of a debt-like instrument with a cash coupon of 12% annually and a total IRR of 19%. Davis Polk & Wardwell’s Hong Kong-based partner, William Barron, represented CIC, and London-based partner John Paton provided CIC with tax advice. Jones Day advised Bumi, while Deutsche Bank AG and PT Samuel Sekuritas were the financial advisors to CIC and Bumi. Davis Polk, who advised Morgan Stanley on a US$5.5bn investment by CIC two years ago, is also working on five other deals involving natural resources in China, Indonesia, Australia and Latin America. “China’s appetite for natural resources has given rise to a number of M&A and fund-raising transactions for us and this William Barron Davis Polk trend is likely to continue,” Barron said. Only two days after the Bumi Resources deal, CIC announced its purchase of over US$850m worth of shares from Hong Kong-based commodity trading giant Noble Group. The sale includes 135 million shares owned by CEO Richard Elman and 438 million new shares, which will give CIC a 14.9% stake in Noble. Listed on the SSE, Noble has recently kept an eye on China’s fast-growing market and will use part of the sale proceeds to expand investment in global agricultural commodities. The two deals follow a cooperation pact established between CIC and the world’s largest commodity trader Glencore, as China deepens its access to global raw material markets. Despite being the youngest player of the world’s sovereign fund families, CIC has become one of the most aggressive foreign investors, also exploring Japanese real estate among other options. ALB

中投继续加大海外投资力度

中 Jeanette Chan

投在两天之内宣布两项投资计划,合计价值达27.5亿美元。中投近期 表示,将在2009年增加海外投资力度,投资额度将是去年48亿美元 的十倍以上。 中投已经接收印尼最大煤炭生产企业 PT Bumi Resources 高达19亿美元的 债务,解决 Bumi 的资本开支困境,推动该公司实现增长战略。此次投资以债 券型工具形式实现,年现金息票利率为12%,合计内部收益率为19%。 达维香港办事处合伙人 William Barron 作为中投的法律代表参与该交易, ISSUE 6.10


NEWS | news >>

Update >>

Singapore 新交所计划出台新规定----早期能源性企业有 望上市凯利板

对尚未取得营业收入的早期能源性企业,2009年8月, 新加坡证券交易所(“新交所”)近期计划出台新规则, 允许此类企业在凯利板上市,并通过其网站向公众公 开征求意见与建议。所谓早期能源性企业是指未进入 实质营业期,对矿产,石油,天燃气等资源尚处于勘探期的能源性 企业。这些企业因为没有持续的利润收入而不符合在主板上市的条 件,如能源性企业进入盈利期,并满足上市手册(Listing Menu) 中上市要求的,可在新加坡证券交易所主板上市。

能源性企业在早期,主要从事对资源的勘探与可行性研究,尚无 收入来源,对将来的经济利益具有不确定性,但也需要大量资金支 持。新交所颁布这一规定,意味着给这些企业的发展带来新契机。 早期能源性企业在凯利板上市,同时也扩大了投资者的选择面,并 使此类增长快速的能源性企业在凯利板取得一席之地,进一步加强 新交所的能源板块。 由于利润的不确定性,投资早期能源性企业的风险显而易见, 新交所制定严格的信息披露制度,要求这类企业对其风险进行全面 披露,规定早期能源性企业在上市前需经独立的技术专家按国际认 可的标准加以评估,同时也要求及时披露包括资源与储量等重要的 技术信息。

新规定主要包括以下几点内容: 1. 在凯利板上市的能源性企业必需有独立的专业人士依据国际标准 出具的有合理前景的资金保障; 2. 在凯利板上市的能源性企业须对每一季度的资金使用情况,下一 季度资金的安排,目前开采状况以及更新资源与储量提供报告; 3. 在凯利板上市的能源性企业对地质分析等技 术信息在经独立的专业人士认可后加以披 露。披露的内容需涉及如发现新的矿产资源 或完全改变现有资源等重大事项。 4. 在凯利板上市的能源性企业按相关规定的内 容与表格进行披露,以便投资者掌握能源性 企业所披露的技术类信息; 5. 能源性企业的保荐人须经有资质的专业人士 出具专家意见履行其相应的职责。 伦敦办事处合伙人 John Paton 为中投提供税务方面的顾问服务。众达担任 Bumi 的法律顾问,德意志银行和PT Samuel Sekuritas 分别为中投和 Bumi 担任金融顾问。 两年前,众达曾作为摩根士丹利的法律顾问,参与中投注资55亿美元的项 目,该事务所还为中国、印尼、澳大利亚和拉美地区其它五个自然资源领域 的交易提供顾问服务。Barron 表示:“由于中国迫切渴求自然资源,该领域的 并购和融资交易激增,且该趋势将继续保持。” Bumi Resources 的交易公布仅两天后,中投又宣布收购香港贸易巨头来宝集 团价值超过8.5亿美元的股份。此次股权出售包括首席执行官 Richard Elman 持 有的1.35亿股股份以及4.38亿股新股,收购完成后,中投将持有来宝集团14.9% 的股份。来宝集团在上海证交所上市,近年来注重开拓快速增长的中国市场, 出售股权筹集的资金将用于扩大在全球农产品领域的投资。 随着中国与全球原料市场的联系日趋紧密,在上述两项交易宣布之前,中 投曾与全球最大的商品贸易企业 Glencore 签署合作协定。在全球主权财富基 金中,中投是历史最短的基金,尽管如此,中投已经成为最具冲劲的海外投 资机构,目前正积极寻求日本房地产市场的投资机会。 www.legalbusinessonline.com

陶丽 企業事務部法律顧問 Ph: (86) 13911000063 Fax: (65) 6534-0833 E-mail: taoli@loopartners.com.sg

陶丽

吳艷娟 企業事務部法律顧問 Ph: (86) 15901669188 Fax: (65) 6534-0833 E-mail: wuyanjuan@loopartners.com.sg

俊昭法律事務所

88 Amoy Street, Level Three, Singapore 069907

吳艷娟

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NEWS | news >>

beijing >>

TransAsia enters strategic alliance with top-tier Australian firm

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o-operation and relations between Chinese and Australian firms have kept pace with the strengthening economic ties between the two countries. With Chinese investment into Australia gaining momentum, a strategic alliance with a PRC firm has been entered into by another Australian law firm. The newly formed alliance between TransAsia and Freehills comes nearly two years after the alliance between King & Wood and Sydney-based firm Gilbert + Tobin was established. While this alliance was mostly seen as the formalisation of an existing relationship, TransAsia’s Australian alliance is largely driven by current market trends and client needs. “Essentially, the purpose of the alliance is to work together with TransAsia on inbound investing into Australia by Chinese companies,” said Freehills’ senior partner, Leon Pasternak. “We have always had partners with links with China, but the level of Chinese investment in Australia now requires us to have a stronger presence and connection. The alliance is reflecting the significant growth of Chinese investment and interest in Australia.” Freehills, with 210 partners and 650 lawyers, has already been an active advisor to Chinese companies investing in Australia. Recently the firm acted for China Investment Corporation (CIC) on its A$750m investment in Goodman Trust. This was the first investment in Australia by a Chinese sovereign fund and the largest Chinese investment in the non-resource sector. While the firm hopes to attract more inbound work, TransAsia benefits from gaining access to a large pool of Australian lawyers who have the resources and expertise to help its clients investing in Australia. The alliance is a non-excusive one, and the two firms are to treat each other as a preferred partner or ‘best-friends’. While this is the first strategic alliance for Freehills, it is the third for TransAsia: the Chinese firm has similar

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arrangement with Canadian firm Torys and Japanese firm TA Lawyers GKJ. Many leading Australian firms, including Mallesons, Minter Ellison, Allens Arthur Robinson and Blake Dawson, have offices in China. Without a China office, the other top-tier firm Clayton Utz maintains a close

relationship with Jun He and King & Wood through global alliances – Lex Mundi and Pacific Rim Advisory Council. As Australia/China trade and investment flows widen, close ties with the profession in China will become a prerequisite rather than a luxury for any top-end Australian firm. ALB

权亚与澳大利亚律师事务所建立战略联盟

着中澳两国的经济联系日益密切,两国律 师事务所的合作和练习亦日趋紧密。鉴于 中国赴澳大利亚投资出现全新推动因素,又有 一家澳大利亚大型律师事务所与中国事务所建立 业务联合。 权亚与辉皓律师事务所近期建立战略联合,而 早在两年前,金杜与总部位于悉尼的 Gilbert + Tobin 已经建立联合。金杜与 G+T 的联合主要是 将双方在香港已经建立的合作关系正式化,权亚 与澳大利亚事务所的联合则主要受到当前市场趋 势和客户需求的推动。 辉皓高级合伙人Leon Pasternak 表示:“双方 联合的主要目的在于与权亚合作,协助中国企业 投资澳大利亚。我们一直在中国有合作关系,但 随着中国赴澳投资的力度日益加大,需要我们与 中国市场建立更加稳固的关系。此次联合充分体 现出中国投资大幅增长,中国企业对澳大利亚的 关注度不断提高。” 辉皓拥有210位合伙���和650位律师,已经是 中国企业赴澳投资领域表现活跃的事务所。近 期,该事务所曾作为中投的法律代表,协助其向

Goodman Trust 投资7.5亿澳元,这是中国的主 权财富基金首次投资澳大利亚,也是中国在澳大 利亚非资源领域进行的最大规模投资。 辉皓希望吸引更多中国投资人赴澳,权亚则可 借助丰富的澳大利亚律师资源获益,这些律师拥 有深厚的专业经验和业务资源,可帮助客户投资 澳大利亚。 此次联合为非排他联合,双方均将对方视为首 选合作伙伴或最佳业务伙伴。这是辉皓首次其它 事务所建立联合,权亚则是第三次建立联合:这 家中国律师事务所还与加拿大 Torys 律师事务所 和日本 TA Lawyers GKJ 律师事务所签订类似的 合作协议。 诸多领先的澳大利亚律师事务所均在中国成立 办事处,其中包括万盛、铭德、安德慎和博雷•道 森•华隆。Clayton Utz 未在中国设立办事处,通过 Lex Mundi 和 Pacific Rim Advisory Council两大全 球联合与君合和金杜保持密切业务联系。 随着中澳贸易和投资日益深化,与澳大利亚顶 尖律师事务所的卓越声望相比,与中国事务所建 立密切合作关系才是客户考虑的先决条件。 ISSUE 6.10


NEWS | news >>

BEIJING >>

Update >>

Highly respected firms to present to in-house lawyers in Beijing

International Tax Historic Liechtenstein /UK Tax Treaty

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ow in its sixth year, ALB In-house Legal Summit Beijing 2009 is a must-attend event for any in-house lawyer, to be held on 26 November. This one-day event will line up a number of workshops, plenary sessions and panel discussions. Renowned firms such as Withers Worldwide and Grandall Legal Group (Beijing) will participate. The Employment Law workshop by TransAsia should be one of the most popular in the summit. Employment law expert Isabelle Wan, head of TransAsia’s employment law practice, will highlight the major reforms affecting employers’ rights and obligations under the new, more regulated labour and employment-law regime. Withers’ partner and Hong Kong regional head of corporate, Guy Facey, will present on the topic. Another highlight will be the in-house panel discussion, talking about the changing face of corporate governance and risk management. Many new laws and regulations have been introduced in recent years and, together with the financial crisis, they have fundamentally changed the way business is conducted in Mainland China and throughout the region. Two areas where such changes will be most salient are in compliance and risk management. The panelists will discuss what this means for in-house lawyers, what new responsibilities they can expect and the keys to ensuring their business’s sustainable growth in light of the changing economic climate and regulatory environment. ALB In-house Legal Summit Beijing 2008 was a huge success, with over 250 delegates from companies and organisations across a wide range of sectors attending. Discussions were held on the role of legal counsel in globalising businesses and in the current global financial turbulence. “This is the sixth ALB In-house Legal Summit to be held in Beijing. Like its sister event in Shanghai, the event always attracts a large room full of in-house counsels from both multi-national and domestic companies, keen to hear expert comment on the latest substantive legal topics straight from the leading firms in each practice area,” said ALB managing editor George Walmsley. “Many of our delegates also comment what a fantastic forum it is for meeting their in-house peers and comparing notes on everything from billing practices to their favourite firms to use for each type of work.” ALB

www.legalbusinessonline.com

he UK and Liechtenstein signed a Tax Information Exchange Agreement (TIEA), on 11 August 2009. The Preamble to the Liechtenstein TIEA refers to the other Agreements and states that the respective governments have “….reached an understanding covering various matters including the introduction by the Government of the Principality of Liechtenstein of a fiveyear taxpayer assistance and compliance programme and the introduction by the competent authority of the United Kingdom of a five-year special disclosure facility. It is the contracting parties’ intention that by the conclusion of the five year period contemplated by the taxpayer assistance and compliance program, there will be no beneficial owners who are liable to taxation within the jurisdiction of one contracting party who are using the laws of the other to disguise such liability without paying appropriate tax in the manner contemplated by the understanding.” The two countries also signed a Memorandum of Understanding and a Joint Declaration in relation to the Memorandum. Under these various Agreements there is to be a Liechtenstein disclosure facility and a Liechtenstein taxpayer assistance and compliance program of which the main provisions are as follows: The Liechtenstein Disclosure Facility (LDF) runs from 1 September 2009 to 31 March 2015. All Liechtenstein financial intermediaries will have to review all clients identifying those who need to confirm their tax position with HMRC and advise them to do so within a specific time frame. Where a UK investor confirms to the intermediary that they are cooperating with HMRC the financial intermediary can continue to provide financial services to that person. Where a UK investor cannot confirm that they are cooperating with HMRC the financial intermediary must withdraw financial services in Liechtenstein or apply various sanctions. The Liechtenstein Government will introduce new laws to ensure audit of the process. The day before these Agreements were signed the Financial Times reported that “5,000 British investors with an estimated £2bn to £3bn in secret Liechtenstein bank accounts will be asked to come clean under a groundbreaking deal to be signed on [11 August 2009]” As the UK-Liechtenstein offshore disclosure agreement comes into effect, UK law firm McGrigors believes it has found a loophole for British holders of hidden offshore savings to halve their back tax liability. They simply shift the cash into a new Liechtenstein account before declaring it. By Debbie Annells, managing director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong www.azuretax.com, a member of AzureTax Group (Tel) +852 2123 9339 (direct line), (Main Line) +852 2123 9370, (Fax) +852 2122 9209 Registered with the Chartered Institute of Taxation for purposes of anti-money laundering legislation.

Debbie Annells

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NEWS | news >>

►► LATERAL HIRES Name

Leaving from

Going to

Practice areas

Location

Ma Tieliang

DeHeng Law Offices

Lifang

Patent

Beijing

Song Hecheng

DeHeng Law Offices

Lifang

Patent

Beijing

Ma Youping

DeHeng Law Offices

Lifang

Patent

Beijing

Huang Dehai

DeHeng Law Offices

Lifang

Patent

Beijing

Han Linghu

DeHeng Law Offices

Lifang

Corporate, Japan and Korea practice

Beijing

Cheng Bing

Orrick

Run Ming

IP, FDI

Beijing

Brinton Scott

Fredrikson & Byron

Barlow

M&A, IP and construction

Shanghai

Royce Miller

Citigroup

Freshfields

Financial services

Hong Kong

Chris Redden

Clayton Utz

Norton Rose

Energy and infrastructure

Hong Kong

Derek Sun

Baker & McKenzie

Eiger Law

Commercial and litigation

Taipei

DeHeng Law Offices

Lifang

Lifang shakes up IP sector Beijing-headquartered Lifang has expanded its IP practice on a large scale. Lifang recently recruited a 30-member team, including five partners. Part of the legal team joined from DeHeng Law Offices’ IP division. Ma Tieliang The five new partners are Ma Tieliang, Song Hecheng, Ma Youping, Huang Dehai and Han Linghu. All have extensive experience in handling patent filings and prosecutions for foreign and domestic clients. Ma Tieliang has been appointed Lifang’s director of IP. He also serves as the chairman of Beijing Intellectual Property Agency Association.

立方大力扩展专利业务

近日,北京立方律师事务所扩充了其知识产权律师团 队。约三十位职员已经加盟该所,其中大部分律师拥有 多年专利代理管理和实践经验。一些新加入的律师,包 括五位合伙人,此前均曾在北京德恒律师事务所执业。 五位新加入的合伙人包括马铁良,宋合成,马佑平,黄 德海和韩岭虎律师。其中马铁良先生是北京市知识产权 代理行业协会会长,曾任中国专利代理(香港)有限公司 (CPA)北京办事处负责人,拥有二十多年的专利代理 管理和实践经验,曾在国家标准局工作多年,在知识产 权和标准化两方面都具有丰富的理论和实践经验。马律 师现任立方知识产权部主管。

Orrick

Run Ming

Run Ming adds new partner Stepping up to the increasing demand for IP advice, Run Ming has recruited partner Cheng Bing to its Beijing office. Prior to accepting the role, Cheng specialised in IP, FDI and corporate governance at Orrick and Jones Day. Qualified to practise law in China, New York and England & Wales, Cheng also has in-house experience Cheng Bing with electronics manufacturer

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OMRON Japan. Run Ming’s expansion endeavours began when the firm added four lawyers to its offices earlier this year: Liang Fei, Yang Lijun, Li Quanhong and Li Hang. The firm is currently recruiting lawyers with IP, capital markets, venture capital and copyright law experience.

润明新增合伙人

鉴于知识产权业务需求增长,润明吸引合伙人程冰加 盟北京总部。加入润明之前,程律师曾在奥睿和众达 专门提供知识产权、外商直接投资和公司管治领域的 顾问服务。程律师拥有中国、纽约和英格兰与威尔士 律师执业资格,还曾在日本电子生产企业OMRON担 任内部律师。她的加盟将有力巩固润明在知识产权业 务以及为日本客户服务的能力。 此外,润明今年初还新聘四位律师加入,分别是:梁 飞、杨丽君、李航和李权宏。该所目前仍在积极寻求进 一步扩张。润明目前正为北京和上海办公室招募知识产 权、资本市场、风险资本和版权法领域的专业律师。

Fredrikson & Byron

Barlow

Barlow appoints new Shanghai head UK firm Barlow Lyde & Gilbert’s China management has undergone some major changes. Following the May 2009 appointment of long-term Hong Kong litigation partner David Smyth as the new managing partner for Hong Kong and China, the firm has recently hired Brinton Scott to lead its Shanghai office. The role is newly created to facilitate the firm’s plan to develop the full potential of its China practice. Scott joined from US firm Fredrikson & Byron’s Shanghai office, where he had served as head of China practice since 2008. The appointment may also help Barlows recover from the loss of a seven-lawyer team from its Asia practice in May this year, when former Hong Kong and China managing partner Camille Jojo joined Norton Rose as head of its Asia disputes practice, along with a team of six associates.

博礼祈首次任命上海负责人

英国博礼祈律师事务所的大中华区管理层近几个月 来经历了较大调整。今年五月,资深香港诉讼合伙人 David Smyth被任命为博礼祈香港和中国地区新管理合

伙人。近日,其上海代表处聘请合 伙人Brinton Scott 担任负责人。他 是该所上海代表处任命的首位负责 人,将指导该所的在大陆市场的发 展,并发掘业务团队潜力。在加盟 博礼祈之前他曾是美国Fredrikson & Byron上海代表处的首席合伙 Brinton Scott 人。在2008年初加盟该所欠,他 曾在史密夫律师事务所执业多 年。Scott 在并购,知识产权和建筑等法律领域有丰富 经验。这次的任命亦将有助于博礼祈弥补今年五月由 于七位律师离职而带来的损失。七位律师中包括该所 前任香港和中国地区管理合伙人Camille JoJo.

Citigroup

Freshfields

Freshfields hires Citigroup financial partner Freshfields Bruckhaus Deringer has successfully lured Royce Miller, currently managing director and general counsel of Citigroup’s Asia Pacific Institutional Clients Group, to join the firm in early 2010. Freshfields is a member of Citigroup’s global legal panel and Miller’s appointment will serve to further strengthen the relationship between the two.Freshfields hopes to benefit from Miller’s 15 years of experience navigating the financial services market in Asia. “Current global reforms, together with the continuing expansion of legislative requirements in mainland China, are placing increasing importance on the need for sound regulatory and risk advice,” said Simon Royce Miller Marchant, Freshfields’ Asia managing partner.

花旗资深法律顾问将加盟富而德

富而德律师事务所成功吸引花旗集团亚太机构客户 服务部现任执行总监兼总顾问律师 Royce Miller 于 2010年初加入事务所。Miller 将担任香港办事处金 融服务业务部合伙人,将进一步巩固富而德的金融 服务实力。富而德是花旗集团全球法律顾问团队的成 员,Miller 的任命将进一步巩固双方的合作关系。 Miller 在花旗集团有15年工作经验,富而德希望 借助 Miller 的深厚经验,进一步拓展亚洲地区的金 融服务市场。富而德亚洲市场主管合伙人 Simon Marchant 表示:“目前全球金融面临改革,加之中国 大陆的法律要求日趋完善,在监管和风险方面的资 深顾问实力愈发重要。” 花旗集团的官方声明中称, Miller 继任者目前尚未确定。不过花旗希望尽快宣布 替代人选。

Clayton Utz

Norton Rose

Norton Rose receives an energy boost Chris Redden is the new banking partner in Norton Rose’s energy & infrastructure team in Hong Kong. Redden has experience across the energy, infrastructure and project finance sectors and has acted for both lenders and sponsors.

Chris Redden

ISSUE 6.10


Firm Profile

Han Kun

Han Kun Law Offices:

Representing its generation milestones ahead

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an Kun Law Offices is not only stepping up to take leadership of its generation, the firm’s rapid growth is a distinct indication of its success since its establishment. The five-year mark may seem rather tender for a PRC firm but by no means connote a lack in accomplishments for Han Kun. The firm now has three offices in Beijing, Shanghai and Shenzhen and credits its achievements on its ability to tread carefully in its clients’ shoes. Han Kun lawyers place heavy emphasis on anticipating and responding to potential issues for clients before they materialise. “We are very proactive in following up on our clients’ needs in an ever-changing market. Our lawyers place themselves in our clients’ shoes. Incorporating our knowledge of market dynamics, we devise different responses and solutions working around the challenges and barriers for our clients in order to attain their business objectives,” said Chao Yijun, a partner at Han Kun. Han Kun’s success can also be attributed to its corporate culture, vision, dedication to providing solution-oriented quality services and a strong desire to grow and develop with its clients.

Expanding above and beyond Han Kun has managed to stay the course during the outbreak of the global financial crisis. The firm marked 2008 as yet another milestone by its addition of 14 new lawyers and an expansive list of clientele which includes AsiaInfo, Huawei, Sequoia Capital, TeamSun and General Electric. Further emboldened by its continuing success, Han Kun opened two new offices in Shanghai and Shenzhen earlier this year, recruiting three new partners and one counsel from international firms. The bold move in such tough times reflects Han Kun’s core principle of incessant recruitment of top legal talents to provide the best legal services to discerning clients within and outside of China. “We plan to cautiously hire professionals to support and fill the strategic needs of our new offices in the next 6 to 12 months,” Chao added. Although rapid expansion is not a new fad in the legal market, what distinguishes Han Kun from other firms in China is its keen attention www.legalbusinessonline.com

to being a solution provider. “In addition to being legal advisors to our clients, we want to help our clients achieve their business objectives without breaking the deal” said Joseph Hwang, a partner at Han Kun. With a combination of international experience and local expertise, Han Kun labels their strategy to be a ‘China practice with a global vision’. The firm practises a perfect balance in-between a traditional PRC firm and an international firm. Most of Han Kun’s partners have worked for a significant number of years at major international firms before founding or joining the firm. Hence, the rich experience in working on domestic transactions coupled with a technical understanding of international practice standards gives Han Kun an edge over the others. “We are a Chinese law firm, and we know the Chinese legal market and issues extremely well. But our practice standard and quality have a heavy international influence,” Hwang added.

Leading practices In view of its success in tackling the financial crisis, Han Kun is well-prepared to take on what the economic climate serves on their platter. The firm is renowned for its three strongest practice areas – Corporate transactions and M&A, International and domestic capital markets, and IP. As one of its leading practices, Han Kun continues to be highly active in the M&A sector, leaving trails of well-reputed representations for both domestic and international clients from various industries in domestic and cross-

border equity and asset acquisitions. The firm represented Baring Private Equity Asia in its acquisition of UK’s leading education company, Nord Anglia Education, and TeamSun in its acquisition of Automated Systems Holdings. Sitting on the front line of the capital markets, Han Kun has had vast experiences representing companies and investors in venture capital and private equity transactions. The firm also represents issuers and underwriters in IPOs on the domestic and international stock exchanges. The firm advised Lihua International’s IPO and Yongye International, a leading developer and distributor of Shengmingsu brand plant and animal nutrient products in China, on its listing on NASDAQ. Another significant representation includes advising one of the most popular social-networking websites in China, Kaixin001, on its Series B equity financing. Han Kun also provides comprehensive legal services to clients ranging from IP portfolio management, establishment of internal IP policy and rules, risk analysis, patents, trademarks, copyrights and trade secrets that arise in commercial transactions. While the rest of the legal market begins to pick themselves up at this time, Han Kun is moving forward, and ever so swiftly. Nominated as ‘Rising Law Firm of the Year’ in the ALB awards 2009, Han Kun’s continuing expansion has earned themselves a rightful recognition for their restless endeavours. Beijing Han Kun Law Offices Suite 906, Office Tower C1, Oriental Plaza No. 1 East Chang An Ave. Beijing 100738 P. R. China Telephone: (86 10) 8525 5500 Facsimile: (86 10) 8525 5511 / 5522 Website: http://:www.hankunlaw.com

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In-house >> 20 >> FEATURE | Strategy

Post-GFC era:

firms move up a gear In the post-global financial crisis era, China is tipped to have a much bigger role in rebuilding and guiding the global economy. These changes in the world order have brought about a unique set of opportunities and challenges for the local legal community. Twelve firms share their new strategies for staying ahead of the curve

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A

s China continues to make hefty investments both domestically and overseas, firms in the country are establishing new game plans and strategies. ALB China speaks to 12 leading firms to find out how their strategies are adapting to the changing economic tides – and moving forward, how they plan to stay on top of their game. Many firms have similar visions and all are competing respectfully for market share, but their strategies differ vastly, mostly depending on size, location and focus in practice areas. Leading international firms like Freshfields and Herbert Smith maintain that core strategy hasn’t changed even during volatile times, but both revealed that the economic climate has called for some internal

restructuring and that there is a need to relocate resources to more active practice areas. On the other hand, domestic firms are stepping on the gas. Firms likes AllBright, Global and Solton are all planning for expansion and recognising the need to market their brand. As some feel increasing pressure to grow, firms like Jun He and V&T continue to believe that expansion can only be sustainable if it is accompanied by a more stringent check on the quality of their legal services. Despite differing focuses, Chinese law firms continue to propel themselves forward, and as the post-crisis era brings new opportunities and challenges to the nation’s legal community and economic market, many may see their ambitions realised. ALB ISSUE 6.10


FEATURE | Strategy >>

Celebrating its ten-year anniversary this year, AllBright is the largest law firm in Shanghai, employing 72 partners and 325 lawyers in four domestic offices – Shanghai, Beijing, Hangzhou and Shenzhen. AllBright’s revenue increased by 30% this year and the firm established two other practice groups – corporate restructuring and bankruptcy.

Its offices in both Pudong and Puxi have expanded and plans are underway to further strengthen its Beijing presence. This year, AllBright also joined the Sino-Global Legal Alliance, in its aim to be part of the platform of integrated international and domestic legal services in China.

What is your firm’s strategy? Blending three core elements into one, our firm’s strategies include strengthening our business in Shanghai and the Changjiang Delta Area market, expanding our business nationwide and developing our overseas market, and to recruit more talent and provide more training courses to improve our teamwork and quality-control systems.

Lawrence Zhu, AllBright

Has your firm’s strategy changed over the past 12 months? AllBright is more focused on internal management and growth. In the past 12 months, and as our business grows, we realised the need for more publicity to let more clients know about our legal services. We have exerted more efforts on international training programs to improve the professional knowledge and skills of our lawyers at various levels. Which practice areas harbour most potential for expansion in the near future? Capital markets, PE, venture capital, litigation and arbitration, anti-dumping and international trade.

Dacheng took the position as ALB’s largest firm by the total number of partners and lawyers in the region this year, with a total of 28 offices and 835 legal practitioners in Asia. The firm increased its headcount by just under 300 and now has 13 more domestic offices than it had last year.

Seemingly untouched by the global financial crisis, the firm expanded at a rate that has left many others dumbfounded. And in alignment with its vision to globalise, the firm broke into the United States, Israeli and Indian markets this year.

How has business for Dacheng changed over the past two years? Dacheng restructured and expansed in 2007, where our total number of lawyers increased by over 500%. The firm’s internal structure, list of clientele, share of the legal market, variation of legal services, quality of services and management have all changed for the better. How has Dacheng’s strategy changed over the past two years? In late 2007, we devised a strategy to globalise. In the process of achieving that we now have 28 domestic offices and 4 offices outside China, with the overall size of the firm increasing by over 940%. We have significantly improved internal management, and have developed a human resource department and a professional legal training team. Dacheng has also strengthened its global communication processes, professional knowledge, abilities and experience through its membership of the World Service Group.

Wang Zhongde, Dacheng

How can firms catch up with the demand for legal services? Recognising the need to expand is vital. Mature legal services and practice areas should continue to be strengthened to be able to seize more of the legal market’s share. It is also important to develop higher-value legal products and quality of services to keep up with clients’ expectations. Law firms must be critical analysts of legal market trends and endlessly push towards professionalism in all aspects.

Global has had a good year, which is set to continue as the firm furthers plans to expand its business. Liu Jinrong, who took over as managing partner this year, has set a clear vision

for the firm and has already started the ball rolling, with plans to open two more offices within the next six months.

How has business changed for Global in the past two years? As our legal practice areas are very diverse, the effect of the financial crisis is not as big compared to other firms. Our firm size and headcount have both expanded and our revenue has also gone up. We have also expanded practice areas like anti-trust, project finance and tax. What is new in your strategy for the firm? We are confident that the economic climate will soon pick up and as it does – especially in China – we are now more enthusiastic to expand. The firm will look for more partners and will also be bolder about setting up new offices. Which practice area do you think harbours the most potential for expansion? Evidenced by the number of listings, domestic capital markets will definitely continue to flourish. The effect of the GFC will see strong enterprises seek to acquire the ones who need to sell their assets to survive – hence M&A sectors will also do well.

Liu Jinrong, Global

www.legalbusinessonline.com

What are your current plans for expansion? Non-contentious practices have great potential in Chengdu and Shenzhen. To further facilitate our expansion plans for areas like arbitration and litigation, plans are underway to set up offices in these regions. It is very important to localise our services, so we are still seeking out local resources within Chengdu and Shenzhen. We are not ruling out mergers with firms in these regions.

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FEATURE | Strategy >>

Jun He has embraced its long-standing reputation as a dominant force with international clientele in China, many of whom are financial institutions. This proved to be a major setback, however, for the firm during the economic downturn as FDI in China fell drastically. Jun He has had to institute a four-day working week and a 20% pay reduction for junior

lawyers who failed to meet their original billing targets. The firm is now focused on strengthening its practice areas and embracing cooperation with international law firms. Managing partner Xiao Wei believes the firms’ advantage lies within domestic markets, and that efforts to compete with international law firms are ultimately futile.

Which industries have provided the most deals for Jun He in the past year? Energy, automobiles and steel. Which practice areas has Jun He expanded over the past year? Capital markets, especially multinational corporation (MNC) overseas listings, IP, anti-dumping, litigation, arbitration, labour and bankruptcy.

Xiao Wei, Jun He

What do you think about competition with international firms in China? I don’t believe in competing with international firms – I think cooperation with international firms is good for the growth of a PRC firm. There is still a lot to learn and building these relationships is good for business networks.

Lifang has a good reputation for its focus on IP practice. The firm recently expanded with a large-scale hire of a 30-member IP team. Lifang’s traditional strength lies in patent litigation, having been involved in hundreds of cases. In 2008, the firm obtained a license from the State

Intellectual Property Office (SIPO) allowing it to handle patent applications for both foreign and domestic clients. Since then, it has handled approximately 3,000 new patent applications.

What have been the main changes in the firm over the past 12 months? There has been an internal shifting of teams within our firm, and we’ve also recently hired 30 more professionals to strengthen our practices.

Xie Guanbin, Lifang & Partners

How has business changed? There hasn’t been a drastic change; our focus in IP is still very healthy and that practice sector takes up about 60% of our business. Having said that, the other 40% of work is also closely interlinked with IP, for example, M&A deals where clients are interested in buying intellectual property. What do you think about firm expansion? To me, the size of the firm doesn’t matter. What’s most important is the revenue that comes in.

The managing partner of Solton places a very high priority on the firm’s membership in the Sino-Global Legal Alliance (SGLA). He believes that through practice cooperation and

information exchange with the SGLA, Solton can enrich its expertise in providing legal services for clients.

How has the legal market changed in the past two years? The legal landscape and operations have both undergone drastic change. The Chinese government’s stimulus packages and the restructure of enterprises have brought about a steep increase in the demand for legal services. How has your strategy changed over the past year? Solton began with a vision to be the leading law firm in Chongqing. At that time we did not see ourselves going global – but that has now changed. What is your firm’s strategy now? Since recognising the need to globalise, Solton has joined the Sino-Global Law Alliance. This has been great platform for us to provide legal services on an international level. SGLA membership allows us to build relationships and alliances with every region’s leading firm. Domestically, we are planning to establish more offices within the region and aim to increase our headcount from 60 to 150. This type of expansion can happen by way of mergers with smaller firms in areas like Wanzhou, Funing and Yongchuan.

Han Deyun, Solton & Partners

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What do you think firms should consider when developing strategy? Firms must have a strong foothold and vision from the start. Law firms have tended to neglect the changes in the Chinese government’s stimulus packages – when this package will determine what is to come. ISSUE 6.10


FEATURE | Strategy >>

Ranked within the top echelons of securities firms, V&T has a strong and long-standing client base from its practices in IPO and M&A. Li Hong, the managing partner of V&T, believes that growth in these two areas will continue to facilitate the firm’s expansion in other practice areas.

He believes the firm has a more stringent internal management system in its move towards providing professional quality, and points out that all legal advice has to be reviewed by senior partners.

What is your firm’s strategy? Our strategy is to chase premium services in all our practice areas. We are strengthening our focus areas likes securities and infrastructure and are currently building up a firm brand.

Li Hong, V&T

What would you describe as the most significant part of your strategy? A specific part of our strategy includes setting up a committee that focuses on our capital markets practice. The committee’s duties will include monitoring legal risks, analysing risks in current capital market trends and reviewing trends in IPO approvals. The committee also serves as a monitoring board and training management tool. The committees will be led by our own partners.

Baker & McKenzie has suffered from the global economic crisis, seeing dips in global revenues, PEP and Asian office profits cut by 3%, 17% and US$20m respectively. The firm also cut back 11% of its fee earners. Despite the setbacks, Bakers has still managed to be involved in major Chinese deals in 2009, including China Lilang’s US$150m IPO,

Sinopharm Group’s US$1.13bn IPO and Sino-Ocean Land Holdings’s US$700m loan facility. In ALB’s recent Hong Kong Law Awards 2009, the firm walked away with five awards – Debt Market Deal of the Year, Project Finance Deal of the Year, Taiwan Deal of the Year, Tax & Trusts Firm of the Year and Managing Partner of the Year.

What is your firm’s strategy? Baker & McKenzie believes in continuing sustainable growth, and to be mindful of short-term goals but not totally driven by them. Mid-to long-term goals are now very important in terms of maintaining a broad platform of practices, responding to competitive prices and the needs of our clients. Has promotion and publicity become an increasingly important element of your business? This has always been important for a firm, it just depends on how one achieves this goal. I’ve always believed that to put your firm out there is to work for high-profile clients and discharge services to your highest potential. At the end of the day, this is what creates a strong brand.

David Fleming, Baker & McKenzie

How would you advise firms in terms of developing their own strategy? I think firms are often overwhelmed by short-term goals, and many are overtaken by the short-term need to enter a practice sector. What is important is to be able to maintain the right stamina – even in volatile times.

DLA Piper was first to announce its Asia job cuts in March this year, axing 20 fee earners in its regional offices. Despite this, the firm remains healthy, particularly in terms of its participation in the capital markets. DLA Piper represented Singyes Solar in its US$58m IPO and Strong Petrochemical’s US$32m public offering.

The firm also assisted China Natural Gas as the company ventured into NASDAQ with its US$50m public offering. DLA Piper is one of the largest international law firms in China, yet despite its position, Liu humbly admits that there are still areas for improvement.

What is DLA Piper’s strategy? Our vision is to be the leading international law firm in China. To attain that we are now working towards developing every field of practice, with extra focus on outbound M&A. What else has changed? China is doing very well during this time. Our offices in Shanghai, Beijing and Hong Kong are working together. We now have a China leadership group and are better balancing, coordinating and supporting each other. What is the focus of your plans for expansion? We are expanding our outbound M&A practice and are currently recruiting for lawyers at mid-level to partner.

Liu Wei, DLA Piper

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What are the other big issues in the legal services industry? Some international firms are still too traditional in their own ways. Cultural differences in China play a very big role, hence it is important to undertake the ‘China way’ of working and attaining a balance between Chinese and international markets.

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FEATURE | Strategy >> Freshfields was the highest-earning law firm by PEP in the world this year, its PEP was almost double that of Clifford Chance. As China’s second largest international law firm, Freshfields has remained poised in what seems like a tumultuous legal landscape. The firm has had a part to play in

almost all major IPOs within the China/ Hong Kong region this year, including China Resources Cement Holdings’ US$800m IPO, Yingde Gas’ US$450m IPO, Power Long Real Estate Holdings’ US$500m IPO, and the world’s second-largest IPO by China Metallurgical.

Has Freshfield’s strategy changed at all in the face of economic change? Our overall strategy in China hasn’t really changed. We will continue to look for opportunities to work on significant and interesting transactions where we can add value and continue to expand the business of our clients. We will continue to stay tuned into changes in the marketplace and aim to grow in a balanced way. We also want to make sure that our business is hedged in what is an increasingly volatile economic environment, and be equally active across all practice areas rather than rely on one area for revenue. This way we make sure that inevitable ups and downs and practices are mitigated by the level of activity. Which practice area has expanded most over the past year? Taking advantage of the new legislation and to capture opportunities arising from this, we established our anti-trust team last year. The practice area has grown quickly and we are now regarded as a market leader in this sector. This is a milestone for Freshfields because it is a matter of seeing this coming and successfully preparing for it. What is the fundamental aim of the strategy? Our strategy is ultimately focused on the need of our clients and the development of our people. It is a two-prong strategy that focuses on building a long-term, sustainable and fruitful relationship with our clients.

Teresa Ko, Freshfields

How would you advise other firms in terms of developing a suitable strategy? Start by determining where you want to be positioned with a goal in sight, and what do you want to become? When a vision is agreed upon unanimously by all partners, then start to work out the steps to get there. There will be continuing surprises from world events and market developments. Firms must have the flexibility to respond pragmatically and take up advantages as they come along.

Recognising the business opportunities in the region, Gide Loyrette Nouel expanded its Asian practice with the launch of English and Hong Kong law capability for its Hong Kong office. Gide also strengthened its Vietnam offices through the arrival of a senior partner, Jacques de Servigny.

Both offices are set to work closely with their mainland counterparts. With 11 partners and 56 lawyers across offices in Beijing, Shangahi and Hong Kong, Gide is now one of the largest international firms in China.

What internal changes has Gide undergone over the past year? We have developed a finance practice through our Hong Kong business and have now established a stronger finance team, supported by lawyers in both Beijing and Shanghai and also London and New York. We have also implemented a world-wide support scheme for our global offices. Which practice areas harbour the most potential for expansion in the near future? M&A, finance, real estate and tax.

David Boitout, Gide Loyrette Nouel

What are the main elements of your firm’s strategy? There are two – to strengthen the practice from a technical perspective and to diversify our practice to provide service on a global basis. How can firms compete for market share in China? Newcomers and law firms who have a small presence in China may cooperate with local long-standing law firms, to be able to attract a larger Chinese clientele.

Herbert Smith has been paying extra attention to its arbitration practice in the Chinese market. The firm has made significant hires, and relocation plans have transferred overseas lawyers to China. The firm is one of the largest international firms

here, with a total of 44 practitioners. Herbert Smith has been named as one of the most-used firms by Sinopec International Petroleum Exploration and Production Corporation, who successfully took over Addax in an US$8bn takeover this year.

How has business changed over the past two years? Last year, there was a significant reduction in all non-contentious work. IPOs went into a halt and M&A transactions became fairly sporadic, and financing was also very quiet. Dispute-related work increased significantly, as this was work that fell out of the GFC.

Andrew Tortoishell, Herbert Smith

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Has Herbert Smith’s strategy changed? Our firm strategy hasn’t changed. We have always had a very large contentious practice, and the growth in demand for contentious practice advice has called for our firm to move people across from non-contentious practices. We have continued largely with our strategy but now place more focus more on the areas which are more active. There hasn’t been a change in strategy but a mere shift in resources. Which practice areas harbour the most potential for expansion in the near future? The energy and arbitration practice will continue to expand and we will see non-contentious, capital markets and M&A coming back, but we won’t know how much. ISSUE 6.10


Firm Profile

WongPartnership LLP

Singapore Court of Appeal Rules Arbitral Tribunal and Not Court to Examine Existence of Dispute

A

rbitration clauses commonly provide that “all disputes arising out of” the parties’ contract will be settled by arbitration. From time to time, however, parties have sought to avoid arbitration and to bring a claim in court on the basis that the arbitration agreement does not apply because there is actually nothing in dispute. For example, the claimant may assert that its claim is so clear-cut that there is no defence to it, and hence for all intents and purposes, there is no dispute. Another example is where the defendant admits the claim in full—there is therefore no dispute— but cannot pay. In each of these cases, can the court take cognizance of the matter and render a decision, or must it instead stay the court proceedings in favour of the contractually agreed-upon arbitration process? The Singapore Court of Appeal in Tjong Very Sumito & Ors v Antig Investments Pte Ltd [2009] SGCA 41 recently affirmed the principles to be considered in relation to an application to stay court proceedings in favour of arbitration. The Court of Appeal also expounded the current judicial philosophy towards international arbitration, which clearly is one of facilitating and promoting arbitration in Singapore.

Sale and Purchase of Shares Agreement Provided for Arbitration The facts may be briefly stated. In this case, the applicant and the respondent were parties to an agreement for the sale and purchase of shares (“Agreement”). The Agreement provided for arbitration in the event of a dispute between the parties. This Agreement was varied from time to time. One such variation was an agreement that payment by the respondent to a third party would discharge its payment obligations to the applicant under the Agreement. Subsequently, the third party asked for, and the applicant agreed to make, early payment of this sum. The respondent was not told of this early payment, and later asked the applicant to pay it instead of the third party. The applicant ignored the request and the respondent eventually commenced court proceedings. The applicant then applied to stay the court proceedings on the basis that the matter should be referred to arbitration as agreed in the Agreement, pursuant to section 6(1) of the International Arbitration www.legalbusinessonline.com

Act. The issues facing the Court of Appeal were the meaning of the term “dispute” and whether the applicant’s silence meant that it did not dispute the respondent’s claim.

Court Will Ordinarily Find That There Is a Dispute As noted earlier, if an arbitration agreement provides for arbitration only if disputes exist, then the subject matter of the proceedings would fall outside the terms of the arbitration agreement if there is no dispute. In considering the matter, the Court laid down the steps to be followed when determining whether there is a “dispute” mandatorily referable to arbitration and hence that the court proceedings should be stayed: • The court will interpret the word “dispute” broadly and will readily find that a dispute exists unless the defendant has unequivocally admitted that the claim is due and payable. • There is a “dispute” if the defendant expressly asserts that he denies the claim; the court will not assess the merits of this denial. • The court can also infer that the claim is not admitted from the previous inconclusive discussions between parties, prevarication or even silence: ○○ There is prevarication where a defendant unequivocally admits the claim, but then later resiles from this admission. In this case, there is a “dispute” over the substantive claim and also whether the defendant can challenge his earlier admission. ○○ The defendant’s silence, without more, is insufficient to constitute a clear and unequivocal admission since there may be good reasons why a party remains silent. • If a defendant makes an unequivocal admission extending to both liability and quantum, then there is no “dispute”. The claimant may bring his claim in court but must come armed with compelling evidence of the admission. If that admission is challenged with any semblance of credibility, the court will ordinarily be inclined to decide that a “dispute” has arisen.

Conclusion This decision makes clear that the situations where a claimant may seek to bring court proceedings in lieu of agreed upon arbitration processes are limited. For practical purposes, the situations where a defendant clearly and unequivocally admits both liability and

Andre Maniam

Chan Hock Keng

quantum of damage but insists on proceeding with arbitration are relatively rare. The Court of Appeal’s helpful explanation of the current judicial policy clearly affirms that the courts will give effect to parties’ contractual choice of dispute resolution. As emphasized by the Court: “Courts should therefore be slow to find reasons to assume jurisdiction over a matter that parties have agreed to refer to arbitration. It must also be remembered that the whole thrust of the IAA is geared towards minimizing court involvement in matters that the parties have agreed to submit to arbitration.”

Contact Partners Andre MANIAM Head – Litigation & Dispute Resolution Direct: +65 6416 8134 Email: andre.maniam@wongpartnership.com CHAN Hock Keng Head – Commercial & Corporate Litigation Direct: +65 6416 8139 Email: hockkeng.chan@wongpartnership.com

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ALB special report | Shenzhen 09 >>

Shenzhen 09: Entrepreneurial spirit thrives “S

hanghai is the financial capital of China, and Shenzhen is the capital of entrepreneurship.” So says Peter Fuhrman, chairman of boutique investment bank China First Capital, giving a good reason why his firm is based in Shenzhen instead of Shanghai. “Shenzhen is an original entrepreneurial success story for China, and remains the most open and flexible place in the country. It also has an established market economy, so it’s a good place for us to be,” says Fuhrman, whose bank focuses on serving China’s privately-owned small and medium enterprises (SMEs). Built by entrepreneurs, Shenzhen continues to produce multinational corporations like Huawei, ZTE and Ping An, and national industrial leaders such as China Merchant Bank, Tencent and Vanke. The boom

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town’s vibrant market and dynamic SME sector continues to attract more investors, and private equity funds too are currently pouring in. The city’s entrepreneurial spirit has also been witnessed in its law firms. RayYin & Partners’ founder and managing partner Zhou Yi is an entrepreneur himself. Previously a lawyer with Shenzhen firm Jingtian, Zhou returned to the city and founded RayYin in 2005 after having obtained an LLM from the University of London. A few years later, the firm extended its national and international reach by merging with a Beijing firm and joining the international independent network of law firms, Lawyers Associated Worldwide, as the first PRC member. In 2008, RayYin set up its own IP agency to meet the increasing demand for IP services in Shenzhen. This year, the firm established a Shanghai branch

to tap the opportunities in the Yangtze River Delta Region. In May, Zhou became a registered foreign lawyer with Hong Kong firm Christine M Koo & Ip to better advise clients on Hong Kong-related matters. The firm primarily focuses on counselling clients and investors from these industries in business, transactional and intellectual property matters. “Shenzhen has been transformed from a manufacturing hub to a hightech innovation centre. The shift has led a number of other industries such as finance, IT, real estate and funds to flourish,” Zhou says. “Opportunities arising out of these important industries lay the foundation of growth and success for Shenzhen law firms.”

On the rise

The growth of Shenzhen’s legal industry is best illustrated by the industry’s ISSUE 6.10


ALB special report | Shenzhen 09 >>

“Shenzhen is an original entrepreneurial success story of China, and remains the most open and flexible place in the country” Peter Fuhrman, China First Capital revenue figures in the past five years. In 2004, revenues of Shenzhen firms totaled RMB1.1bn and by 2008 this figure had doubled to RMB2.2bn. Ideally placed in Shenzhen, Guanghe law firm took the top spot in ALB China’s 2008 Fast Growing Firms ranking, with an impressive growth of 98%. However, the opportunities emerging in Shenzhen are not exclusive to local law firms. On the contrary, local firms are facing increasing competition from Beijing and Shanghai rivals – particularly in the high-end segment – work on major public offerings and large M&A transactions, for example. A recent transaction involving two Shenzhen-based companies shows Beijing and Shanghai firms’ strength in the market. In Ping An Insurance Group’s US$3.2bn acquisition of Shenzhen Development Bank, three non-local PRC firms were involved. Beijing’s DeHeng Law Offices worked alongside DLA Piper advising Ping An, Haiwen acted

for Shenzhen, and Shanghai’s Fangda and Freshfields represented the seller, TPG’s Newbridge capital. The vast pool of potential clients and its strategic location has increasingly driven firms to set up shop. Beijing firms Dacheng, Jingtian & Gongcheng, Zhongyin and Zhongtian are some of the newcomers, while US-based JD Global is soon to open an office in Shenzhen. “The demand for legal services in Shenzhen is burgeoning, but the major challenge for local firms lies in competing against big brands from Beijing and Shanghai that are well-established and have proven track records in working on major deals,” says Lai Weiwen, the managing partner of China Commercial Law, with more than 142 lawyers and 41 partners one of Shenzhen’s largest firms. Over the past year, the impact of the financial crisis has intensified competition. Some local firms observe that large Beijing and Shanghai firms have had to lower their charge-out rates, sometimes even lower than leading local firms, to win more instructions from the mid and small-cap market and keep their business afloat. “To win more market share, local firms really need to integrate client resources firm-wide and seek business opportunities among existing clients across all principles and practices,” Lai says. “In addition, they have to leverage their local knowledge to come up with creative legal solutions and innovative services.” Competition aside, China Commercial’s projected 2009 revenue

will post a 20%-30% growth over the previous year – not a bad result given current circumstances. For Shenzhen Bar Association’s president Li Chun, competition is part of what makes a market thrive. “Currently, more than 60% of the industry’s revenue is generated by 20% of the firms. The top-notch firms will continue to dominate the market, a trend that I don’t expect to change any time soon,” Li says. “It’s a competition pattern that resembles that of other more developed markets, such as Beijing, Shanghai and Hong Kong.” Li is also executive partner of Grandall Legal Group, who founded Grandall’s Shenzhen legacy firm TangRen Law Firm. He now manages the group’s Shenzhen and Hong Kong offices and expects the Shenzhen office to achieve 2025% revenue growth by the end of 2009.

Vision 2020

Shenzhen’s legal market is regarded as in the top four in China, after Beijing, Shanghai and Guangzhou. It’s arguable whether Guangzhou’s legal development is ahead of Shenzhen, but obvious that Shenzhen is lagging far behind Shanghai. At the end of 2008, Shanghai had 9,600 lawyers who generated RMB4.6bn revenue in that year; by those measures Shanghai’s legal industry is twice the size of Shenzhen’s. Nevertheless, an entrepreneurial spirit looks set to lead Shenzhen and its legal profession to greater success, as the city sets a vision for its long-term development. Among

►► major Active legal advisors in Shenzhen ۸ Firm China Commercial 华商 Commerce & Finance 通商 DeHeng Law Offices 德恒 Grandall Shenzhen 国浩(深圳) Guanghe 广和 Jingtian & Gongcheng 竞天公诚 Jingtian 经天 Jun He 君合 King & Wood 金杜 RayYin 瑞英 SD Partners 晟典 Shu Jin 信达 Sincere Partners 星辰 Zhong Lun 中伦 Zhong Yin 中银

Partners 38 2 5 16 87 6 12 5 15 2 42 18 22 20 3

Lawyers (incl. partners) 150 8 84 49 266 20 34 19 73 8 83 51 84 75 27

Managing partner Lai Weiwen 赖伟文 Lu Xiaoguang 陆晓光 Yu Xiufeng 于秀峰 Zhang Jingqian 张敬前 Tong Xin 童新 Xu Sanqiao 徐三桥 Chen Xueming 陈学明 Yao Wenping 姚文平 Wang Rongkang 王荣康 Zhou Yi 周翼 Yu Junfu 余俊福 Yin Gonghui 尹公辉 Guo Xingya 郭星亚 Lai Jihong 赖继红 Peng Zhangjian 彭章键

Year established 1993 1998 2002 1994 1995 2007 1994 1999 1998 2005 2002 1993 1993 2002 2009

۸ Note: Firms are listed in alphabetical order and this table does not purport to be exhaustive Source: partners and lawyer numbers were according to the website of the Shenzhen Lawyers Association, as at 30 September 2009

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ALB special report | Shenzhen 09 >>

►► Shenzhen’s legal industry development Year 2008 2007 2006 2005 2004

Revenue (RMBbn) 2.20 2.19 1.61 1.37 1.08

Number of lawyers 5,100 4,600 4,100 3,500 3,100

►► Beijing, Shanghai and Guangzhou legal industry – 2008 City Beijing Shanghai Guangzhou

Revenue (RMBbn) 8.45 4.58 1.68

Number of lawyers 18,600 9,600 5,200

the measures and policies included in the city’s blueprint for the period up to 2020, the vision of developing the Hong Kong-Shenzhen metropolis is of particular interest. Under the plan, the Hong KongShenzhen close cooperation agreement will cover such matters as financial services, hi-tech and high-end R&D, transport, environmental matters and ecology. The Shenzhen-Hong Kong metropolis could reportedly be the third largest in the world in GDP terms by 2020, behind New York and Tokyo. Sharing the same vision of what the city strives to become, the Shenzhen Bar has set out its own roadmap for the legal profession, both to facilitate and to benefit from the plan’s implementation. Developing closer ties between the legal professions in the two cities has been one of the first steps adopted by the bar. “The Hong Kong Bar and Shenzhen Bar have been meeting on a monthly basis and some arrangements have been achieved, including plans to provide training to lawyers from both sides, seeking different ways for Hong Kong and Shenzhen firms’ cooperation and promote cross-border services,” Li says. “Closer cooperation is beneficial for the legal markets in both cities. It will also prepare both sides’ legal professions to participate in the increasing amount of cross-jurisdiction infrastructure projects, such as ports, railways and bridges, as well as project finance transactions.” Shenzhen’s 2020 blueprint includes the construction of a 29 kilometre bridge linking Hong Kong, Macau and the Pearl River Delta, the construction of 3,000 kilometres of highways in the region by 2012, and rail expansion 36

of over 1,000 kilometres by 2012 and 2,200 kilometres by 2020. With the expectation that the pan-Pearl River Delta region (PRD) will rise to the fore in the global economy, many law firms have also been forming new strategies. SD & Partners has recently revealed its plan to set up a national legal group that would encompass local firms in all of the country’s important economic centres. The firm has already signed a memorandum of understanding (MOU) with a leading Shanghai firm, taking the first step towards its goal. “The legal market is developing so fast that a firm has to constantly change for the better or it will vanish,” says Yu Junfu, the executive partner of SD & Partners. “Although the short-term outlook is still challenging for Shenzhen firms because of the GFC impact and the increasingly competitive market, we are very positive about the long-term prospects of the local legal industry.” Yu was appointed by the Shenzhen Bar to lead a study on the profession’s development planning up to 2020. The study predicts that Shenzhen will have over 30,000 lawyers by then, with client demand and growth expected to soar for IP, finance and securities, and practice areas related to shipping and logistic sectors. China Commercial’s Lai Weiwen is as bullish on the long-term prospects as Yu, and aims to lead in the PRD region with the Sino-Global Legal Alliance (SGLA), which China Commercial founded with nine other firms (including Lovells) in 2007. “Members of the SGLA have decided to seek greater and closer cooperation with each other. We are striving toward operating as single-brand national firm,” Lai says. That also explains why China Commercial has no plan to open branches of its own outside Shenzhen.

Growth plans

While the government’s 2020 plan paints a grand picture for the future, Shenzhen’s newly launched Growth Enterprise Board (GEB) is the immediate focus of all participants, offering Shenzhen firms a tangible opportunity. “We’ve been particularly optimistic about the GEB. Among all the companies that are eligible for a GEB listing, about 50% are based in Shenzhen,” Yu says. “It offers law firms a brand-new pool of potential clients. More importantly, the GEB will enable startups and SMEs to raise much-needed

capital to grow and eventually create an even stronger innovation economy and greater legal market in Shenzhen.” Already among the leaders in advising on SMEs listings, Grandall’s Shenzhen office continues to beef up its capital markets group. The office has added 10 new partners and recruited 30 more legal staff this year. “We expect the capital markets to regain strength and resume rapid growth in the near future, so we need to strengthen our human capital reserve for the anticipated increase in demand, especially after the GEB takes off,” says Li. Although the business has not yet recovered to its previous lofty levels, Li sees this as a great opportunity to recruit legal talent. “Now is a good time for us to recruit the best and brightest lawyers, because we have the right amount of time and a bigger pool of candidates to select from.” The GEB launch will not only boost the demand for corporate legal services, but more importantly, will provide a valuable opportunity for law firms to establish a long-term relationship with the fast-growing startups that may become tomorrow’s industry leaders. “If a law firm has acted for the issuer in its IPO on the GEB, it usually will have a better chance to be sought out by the company again for future transactions, such as follow-on financings, M&A or transferring to the main board,” says Zhang Jiong, a partner of Shu Jin, winner of the 2009 ALB “Shenzhen Law Firm of the Year” award. “It takes time and effort for a client to know their legal advisors and place trust in them. The preparation of an IPO provides a great course to establish trust between a client and legal advisor.” As the city’s future vision crystallises, entrepreneurs in Shenzhen law firms will continue searching for change, responding to and exploiting those opportunities as they arise. ALB

“The legal market is developing so fast that a firm has to constantly change for the better or it will vanish ” Yu Junfu, Sd & Partners ISSUE 6.10


A leading legal services firm in Southern China SD & Partners is a large scale, professional and internationalized legal services firm offering a wide range of legal services in Southern China. Since its establishment SD & Partners has been a leading legal services firm in Shenzhen in terms of business volume, lawyer incomes and tax paid. The SD & Partners team comprises more than 150 staff members, of which 42 are partners. All of our lawyers are graduates of renowned institutions in China and abroad. Many of our lawyers have experience studying or working in legal firms in the United States, United Kingdom, Canada, Australia, Singapore and Hong Kong. With a solid foundation, SD & Partners is well positioned to handle all kinds of law cases. Our lawyers are diligent, responsible and strictly follow the industry standard and business ethics. Lawyers at SD & Partners share the same vision. We have a sophisticated operations management system in place to encourage team work and division of labor among our lawyers and departments so as to facilitate a complementary use of resources. SD & Partners has developed close connections with our clients, the Chinese judiciary department and other relevant authorities. We have also gained an excellent reputation for our long-lasting cooperative relations with stock exchanges, banks, securities brokerage firms, financial consultants, law firms, audit firms and credit rating agencies both in China and abroad. In December 2003, the SD & Partners Institute of Legal Studies was founded by SD & Partners, the first law firm to establish a research institute for legal studies. In October 2004, the SD & Partners Law Review was published and distributed by People’s Court Press. The Review combines the work of our lawyers and research institute and exemplifies the application of legal theories in real-life.

SD & Partners comprises the following teams: • Corporate Services Department

• Intellectual Property Department

• Securities Investment Department

• Financial Services Department

• Infrastructure Development Department

• International Operations Department

• Real Estate Department

• Maritime Law Department

• Insurance Department Add: F18-19, Block B, The Pavilion Hotel, 4021 North Huangqiang Road, Shenzhen, P.R.China Tel: 86(755)8366 3333 | Fax:86(755)8207 5055 | Web: www.shengdian.com.cn


FEATURE | aviation >>

Major deals in the aviation sector 2008- 2009 ►► Air China – Cathay Pacific stake acquisition

Value: US$825m Firm: Freshfields Lead lawyers: Kay-Ian Ng, Alan Ryan, Michael Han Client: Air China

• Air China acquired additional 12.5% stake in Cathay Pacific from CITIC Pacific. Deal will raise Air China’s stake in Cathay Pacific to 29.99% • CITIC was represented by its in-house counsel in this transaction • “This significant deal would bring two of Asia's leading airlines closer together as well as strengthen the position of Beijing and Hong Kong as two of the key aviation hubs in the region.” said Freshfields Bruckhaus Deringer’s Kay-Ian Ng. The firm’s Beijing competition partner Michael Han provided anti-trust legal advice to Air China

Aviation law: prepare for take-off Lawyers focusing on servicing the aviation sector will have an increasing amount of work to keep them busy, as the industry becomes more market-oriented and the regulatory skies become clearer for private flyers

►► Aerdragon Aviation Partners A320 purchase Value:US$230m Firm: Richards Butler (in assoc with Reed Smith) Lead lawyer: Emma Casdagli Client: Export-Import Bank of China Firm: Run Ming Lead lawyer: Liu Yi Client: Export-Import Bank of China Firm: Clifford Chance Lead lawyer: Simon Briscoe Client: AerDragon • Export-Import Bank of China provided US$230m loan facility to AerDragon for purchase of six A320 aircraft assembled at Airbus’s Tianjin line. First A320 was leased to Sichuan Airlines in June • Clifford Chance was involved in establishing the Airbus A320 final assembly line in Tianjin in 2007

►► China Eastern Airlines – Shanghai Airlines merger Value: US$1.3bn Firm: Commerce & Finance Client: China Eastern Airlines Firm: Fangda Partners Client: Shanghai Airlines • In July 2009, China Eastern Airlines and Shanghai Airlines announced their plan to merge through a share swap in a deal valued at US$1.3bn • Upon completion of the deal, Shanghai Airlines will become a subsidiary of China Eastern. The merger is set to consolidate China Eastern’s hold on China’s second largest air travel market and enable it to compete more effectively with domestic rivals Air China and China Southern Airlines • Commerce & Finance has been a longstanding legal advisor to China Eastern Airlines, a relationship it has developed since the global IPO of the airlines back in 1997. Commerce & Finance also advised on the merger filing under the Anti-Trust Law in this transaction

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ISSUE 6.10


FEATURE | aviation >>

I

n 2002 when the nation’s aviation industry underwent its first major restructure, Gao Feng, now a partner of Grandall in Beijing, decided to trade in an in-house position for the opportunity presented in private practice. In that year, a key step was taken by the government to consolidate 13 smaller domestic airlines into three dominant groups – Air China, China Southern Airlines and China Eastern Airlines. Having more than ten years of practice experience, including several years spent as the head of legal for China Northern Airlines (which merged with China Southern Airlines in 2002), Gao senses another major restructuring is underway, if not already taking place. A second wave of opportunity is in the air for aviation lawyers. “The past year has been a period of significant changes for many market participants,” he says. “There have been a number of landmark M&A transactions between airline companies – and some companies have undertaken restructuring to improve operations and finances. Changes came after the industry suffered a total loss of RMB28bn in 2008 – the biggest loss over the past 30 years – which was caused by a mix of triggers, including the effects of the GFC.” Among the more conspicuous events/ transactions in the past 12 months is the merger between China Eastern Airlines and Shanghai Airlines, and the bankruptcy of privately-owned East Star Airlines. In July 2009, in a deal valued at US$1.3bn, China Eastern Airlines announced its plan to merge with Shanghai Airlines through a share swap. The deal is set to consolidate China Eastern’s market share, improve its profitability and enable it to compete more effectively with its two main rivals. China Eastern turned to its long-standing legal advisor Commerce & Finance for advice, while Shanghai Air sought out Fangda as its counsel. The fate of Wuhan-based East Star, however, is more turbulent. The four-year old company became the country’s first ever airline to go bankrupt in March this year, with liquidation proceedings ongoing.

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“Due to the waning demand for both freight and passenger flights in the past year, all airlines have been hit to a certain extent. But the current market conditions make it much tougher for private companies to stay afloat than the state-controlled ones” Liu Yi, Run Ming The bankruptcy case involves six main creditors and a number of potential bidders and investors, and has kept a raft of law firms busy, including Run Ming, W&H and Grandall. “Due to the waning demand for both freight and passenger flights in the past year, all airlines have been hit to a certain extent,” says Liu Yi, executive partner of Run Ming. “But the current market conditions make it much tougher for private companies to stay afloat than the state-controlled ones.” Liu is a highly reputed legal advisor for aircraft finance, and has been involved in many large and complex aircraft sales, and purchase and leasing transactions in the industry. In addition to the East Star case, United Eagle Airlines’ takeover by the state-run Sichuan Aviation Group, and Okay Airways’ three-month suspension from operations, are two other examples of the turbulence that the private sector is flying through. However, a couple of private operations have managed to stay away from experiencing unfortunate events. Spring Airlines and Juneyao Airlines – both based in Shanghai – have achieved ideal results in the past few years. Both airlines are planning to launch an IPO in Shanghai to fund their future growth. The type of aviation work on which law firms are advising has also shifted. “Since the end of last year, the volume of aircraft finance and sales work has gone down, but more clients have engaged us for matters such as restructuring, insolvency and dispute resolution,” Run Ming’s Liu says. He is currently leading a team representing a foreign aircraft leasing company in

its dispute against Okay Airways, over contractual obligations. While both state-run and privateowned companies will still have to face their own sets of challenges in coming years, the restructuring and M&A trend in the industry is expected to continue. “The three dominant airlines – and some leading private airlines – will be actively acquiring Company/organisation: China Southern Airlines Department manager: Chen Weihua Legal department: The department currently employs 30 legal staff in four teams, who are responsible for contract management, risk management, litigation and arbitration, and international affairs respectively

Chen Weihua China Southern Airlines

Top three responsibilities:

1. Providing legal advice for major business decisions, and ensuring the legitimacy and compliance of risk control and management 2. Responsible for managing all of the company’s commercial contracts and reviewing major contracts 3. Management of all litigation and arbitration cases

Most-used international and domestic firms: Allen & Overy, Norton Rose, Herbert Smith, DLA Piper; King & Wood, Run Ming, Zhong Lun W&D and Guangdong Z&T

What are the criteria for external counsel?

Costs, qualify of service, professional standards and communication skills

Biggest challenges?

The main challenge for us lies in shifting from traditional legal work to comprehensive risk management, and integrating the in-house legal function into the business

Recent notable activity?

1. Recruitment of new flight attendants and selfpaying pilot recruitment projects. 2. Sales of Airbus A300, MD-82 and MD-90 3. Introduction of Boeing 787 and Airbus 380

39


FEATURE | aviation >>

Major deals in the aviation sector 2008- 2009 ►► East Star bankruptcy

Wuhan-based private carrier East Star, established in 2005, has become the country’s first-ever airline to go bankrupt, after Wuhan Intermediate People’s Court rejected a number of restructuring proposals in August 2009. The case involved six main creditors and a number of potential bidders and investors, keeping a raft of law firms busy, including Run Ming, W&H, Grandall, and Hubei Shanhe law firm, part of the administrator team appointed by the court. "The bankruptcy of East Star Airlines reflects many problems. The biggest one is the lack of funding and management capability in private airlines" said Zhang Jie, a director of Shanhe law firm

►► Sichuan Aviation Group’s takeover of United Eagle Airlines State-run Sichuan Aviation Group has taken over Chengdu-based privately-owned United Eagle Airlines for US$29m. Through this deal, Sichuan Airlines have increased its stake in United Eagle from 20% to 76%. United Eagle’s debt-toasset ratio reached over 90% at the time of the transaction due to the economic circumstances. The takeover will help the airline lower its debt-toasset ratio to less than 80%

Firm Profile

Run Ming Law Office

R

Private participation growth

The government’s encouragement towards private capital to enter the civil aviation market signifies a new direction in future developments for the industry. While there are well-established legal practices such as general corporate, M&A and restructuring, other services will be increasingly needed when private capital flows into establishing cargo and passenger services, financing airport projects and the general aviation area. In April, the State Council issued an important administrative regulation for civil airports, Administrative Provisions for Civil Airports, which

has clearly categorised them as infrastructure for the first time. “The new regulation has laid the foundation for private investment and participation in airport financing and management,” says Gao, who has been involved in formulating this particular set of provisions. With the regulations in place, financial institutions like insurance companies are now able to invest in civil airport and gain long-term, steady returns. On the other hand, private investment will provide much-needed funds for new airport construction projects. “This regulatory change will fundamentally change the way and structure with which new airports are to be financed, constructed and operated,” Gao says. Gao Feng The government has Grandall set an ambitious plan

A leading Chinese law firm in aviation practice

un Ming Law Office (“Run Ming”) is a premier Chinese law firm offering a wide range of business and commercial law services. With offices in Beijing and Shanghai, Run Ming is committed to providing total business legal services. Over the years we have established ourselves as a leading PRC law firm and have been recommended by Chamber’s Global – Global Leading Lawyers, Asia Pacific Legal 500, Asia Law Profiles, and International Financial Law Review as one of China’s top law firms. In fact, we were ranked by Asia Pacific Legal 500 as one of the most outstanding Chinese law firms in the areas of banking, finance and aviation. Our lawyers in Run Ming’s aviation practice group have been at the forefront in serving aviation industry clients – while only a few lawyers in China are able to provide legal services in such field. We have advised many well-known domestic and international airlines, aircraft leasing companies and manufacturers in cross-border or domestic financing and leasing of aircraft, engines and other equipment.

40

smaller airline companies or sideline companies, and restructuring their business and finances,” says Grandall’s Gao. “Consolidation in the sector will keep going [on] for years to come. There will be many exciting times ahead for lawyers.”

Clients and legal professionals at home and abroad recognize the quality of our services. The following are some landmark transactions in which we were involved: 1. In 2009 we advised Bank of Communications Finance Leasing Co (a wholly-owned subsidiary of Bank of Communications) on the sale and leaseback of two Airbus A340 aircraft with China Eastern Airlines Corporation, valued at RMB590m. Beijingbased senior partner Liu Yi led the Run Ming team. Run Ming also advised Bank of Communications Finance Leasing Co in the sale and leaseback of one B767 aircraft with Hainan Airlines last year. 2. In 2009 we advised as primary counsel for The Export-Import Bank of China (C-EXIM) on a US$230m term loan facility to AerDragon Aviation Partners Ltd (AerDragon), for its purchase of six China-assembled Airbus 320 aircraft. The first was successfully delivered by Airbus (Tianjin) to AerDragon on 22 June 2009 and immediately leased to Sichuan Airlines Co. Beijing-based senior partner Liu Yi led the Run Ming team.

3. We advised ICBC Financial Leasing Co in the finance lease of one 747-400SF closed in December 2008, with Yangtze River Express Co as Liu Yi borrower and lessee and ICBC Leasing as lender, arranger and lessor. The deal was awarded ‘Asia Deal of the Year’ by the prestigious Airfinance Journal. Partners Liu Yi and Wang Gang led the Run Ming team.

Run Ming Law Office: Address: Suite 1806, NCI Tower, 12A Jianguomenwai Avenue, Chaoyang District, Beijing 100022, China Tel: +86 10 6569 3511 | Fax: +86 10 6569 3512/3513 www.runminglaw.com Shanghai Office: Address: Suite 1907, Shui On Plaza, 333 Central Huaihai Road, Shanghai 200021, China Tel: +86 21 6385 8855 | Fax: +86 21 6385 5150 ISSUE 6.10


FEATURE | aviation >>

to build 97 new airports by 2020 at an estimated cost of US$62.5bn, in an attempt to meet soaring domestic passenger and cargo demand.Private capital’s participation in this plan will generate a considerable amount of legal work for law firms’ aviation and project finance teams. The regulators’ efforts in ratifying important international conventions on civil aviation will also encourage more private operations to set up. “China ratified a new convention in May this year, taking a further step

to protect shareholders’ rights and asset in aviation companies. I believe that more mid-level private aviation companies will be established in the future resulting in more regional airlines,” says George Wang, a partner of Beijing firm Kingfield, who specialises in aviation law. He is particularly experienced in representing freight forwarders and airline companies. The firm is on Air China’s external advisor panel list and has a long-standing relationship with the company.

As the aviation industry largely abides by international laws and rules, having international capacity and knowledge is essential for law firms focusing on this industry. Kingfield extends its international reach through Forwarderlaw – which is an alliance of lawyers in 20 countries who specifically practice international transport law for clients in the freight industry, particularly freight forwarders and logistics companies. This network is Kingfield’s first point of reference for client referrals. ALB

“The three dominant airlines – and some leading private airlines – will be actively acquiring smaller airline companies or sideline companies, and restructuring their businesses and finances. Consolidation in the sector will keep going for many years to come” Gao Feng, Grandall

Firm Profile

China civil aviation laws show good promise

A

s is the same with maritime law, the substantial content of the relevant international conventions are incorporated into China’s Civil Aviation Law, including the carrier’s liability limitation regime. Unfortunately, the aviation law is not as popular as the maritime law. Some passengers/cargo owners, even a great number of attorneys, hold the naive opinion that when luggage is found damaged or missing, to advise the passengers to make claims against the airlines, pursuant to the consumers protection laws pursuing double compensation on the ground of fraud. In a law case, for example, one piece of a passenger’s luggage went missing during his journey from Dubai to Beijing. The Chinese passenger claimed against the foreign air carrier on the grounds of fraud, with the alleged value of the suitcase luggage was RMB40,000. However, the claiming amount was as high as RMB600,000, including double compensation based on the tickets,

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mental damages, and refund of the travelling expenses. Fortunately, the court was not puzzled by the debate – Beijing’s Second Intermediate People’s Court accepted our defense reply and made the decision – pursuant to the ratified Montreal Convention 1999 – that the passenger should be compensated by SDR1000. In recent years, China has greatly improved aviation legislation by raising compensation amounts for domestic carriage (even where there is a big gap compared with international transportation), ratifying new conventions (for example the Montreal Convention 1999). On 3 February 2009, China formally ratified the Convention on International Interests in Mobile Equipment (Cape Town 2001) and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, which became effective on 1 June 2009. The ratification of the Convention will provide the owners and

Kingfield Law Firm

mortgagees of aircraft equipment with better protection for their interests under security agreements, title reservation agreements or leasing agreements, and lower financing costs for Chinese airlines. It will certainly motivate the Chinese aviation industry. These good prospects will provide lawyers with very great opportunities in coming years. George Wang Kingfield Law Firm Suite 406-408, CYTS Plaza Dongzhimen South Avenue Dongcheng District Beijing, China 100007 Tel:86-10-58156281/78 Fax:86-10-58156270/71 Mobile: 13501178558 Email: wangyb@kingfieldlaw.com www.kingfieldlaw.com

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FEATURE | HK Law Awards – the winners >>

►► The full list of winners Deal awards Debt Market Champion REIT Equity Market Hutchison Telecom Spin-Off M&A China Merchants Bank – Wing Lung Bank Acquisition Project Finance Central Asia – China Gas Pipeline Korea E-Land Group – Homever Sale Taiwan Advanced Semiconductor Engineering ‘Going-Private’ Buyout of ASE Test In-house awards Banking & Financial Services Bank of America Merrill Lynch Construction MTRC Insurance AIA Investment Bank Morgan Stanley IT/Telecommunications Hutchison Telecom Media & Entertainment PCCW Real Estate Hongkong Land Shipping COSCO Pacific Hong Kong lawyer Jaclyn Jhin, Morgan Stanley

N

ow that the dust has settled over the announcement of the ALB Hong Kong Law Awards winners, one thing has become clear. While it was a tough time for the economies of the SAR itself and the region as a whole, players right through the ranks of Hong Kong’s legal services industry still managed to record another fantastic year of landmark transactions, cutting-edge solutions and (at times) startlingly sophisticated legal advice. Well established as Hong Kong’s leading awards event, the ALB Awards were attended by a GFC-defying 400-plus pre-eminent lawyers, from both in-house and private practice. And, while the four-month indepth research process had already produced a deserving lists of finalists

42

in each of the 35 categories, the announcement of the winners was as keenly anticipated as usual. This year it was Baker & McKenzie and Freshfields who claimed the largest number of awards on the night – five each (see ‘The Big Winners’ table). Perennial finalist JSM won an impressive four trophies, while Clifford Chance and an ascendant Simmons & Simmons took three each. “Winning five ALB awards, covering equity, debt, M&A, project finance and IT & telecoms, is about as good as it gets,” said Simon Marchant, Freshfields’ Asia managing partner. “It’s always good to get recognition for our work, especially so given that the last year has seen some of the most challenging market conditions that we have experienced.” All in all, there were 41 different organisations

– among them 10 inhouse teams – who won awards. Included in the winners were firms from Korea (Bae Kim & Lee, Kim & Chang), Taiwan (Lee and Li), Singapore (WongPartnership) and, of course, mainland China (Jun He, King & Wood, Zhong Lun). Perhaps the biggest category of the night – ‘Hong Kong Law Firm of the Year’ – had been redefined by organisers for the 2009 awards. All firms with an office in Hong Kong were eligible, as opposed to recent years where only firms headquartered in Hong Kong were considered. While JSM and to some extent Deacons had dominated the award in recent years, it was Linklaters (advisers on as many as eight finalist deals and finalists itself in four ‘Firm of the Year’ categories) which took the award this year. ALB

Firm awards Boutique/Specialist Charltons Criminal Haldanes Matrimonial Hampton, Winter and Glynn Construction Pinsent Masons Dispute Resolution Herbert Smith Employment Simmons & Simmons Insolvency & Restructuring JSM Insurance Deacons Intellectual Property Bird & Bird Investment Funds Clifford Chance IT/Telecommunications Freshfields Bruckhaus Deringer Real Estate JSM Shipping Holman Fenwick Willan Tax & Trusts Baker & McKenzie Offshore firm Maples and Calder PRC firm, Hong Kong office King & Wood Korea Deal firm Kim & Chang Taiwan Deal firm Lee and Li Managing Partner Elaine Lo, JSM Poh Lee Tan, Baker & McKenzie Hong Kong firm Linklaters ISSUE 6.10


FEATURE | HK Law Awards – the winners >>

►► ALB Hong Kong Law Awards 2009 – The Big Winners Firm

Number of wins

Categories

Baker & McKenzie

5

Debt Market deal Project Finance deal Taiwan deal Tax & Trusts firm Managing Partner

Freshfields Bruckhaus Deringer

5

Debt Market deal Equity Market deal Project Finance deal M&A deal IT/Telecos firm

JSM

4

Debt Market deal Insolvency & Restructuring firm Real Estate firm Managing Partner

Clifford Chance

3

M&A deal Project Finance deal Investment Funds firm

Simmons & Simmons

3

Debt Market M&A deal Employment firm

►► The ALB Law Awards Series 2010 – Make sure your team receives the recognition it deserves

JUDGING PANEL

The judging panel for the ALB Hong Kong Law Awards is composed of knowledgeable and respected individuals from across the legal services industry. Some judges are representatives from the winners of key categories of our previous years’ Awards. Judges do not vote in categories where any conflict of interest occurs or where they feel their market knowledge is insufficient. For all other categories, all judges give first (3pts), second (2pts) and third (1pt) choices; points are then aggregated to ascertain the eventual category winners. The votes from two ALB judges carry equal weight to those of all other judges. Tim Steinert Alibaba Group David Fleming Baker & McKenzie Patrick Moran Bank of America Merrill Lynch Julia Charlton Charltons Steven Yeo Citi David Lamb Conyers Dill & Pearman Michelle Hung COSCO Pacific Paul Abfalter CSL David Flavell Danone Gareth Bater Goldman Sachs David Glynn Hampton, Winter and Glynn Michael Gagie Harneys Jasmine Karimi HKCCA Kenneth Ng HSBC Susan Chan Hutchison Whampoa Properties Richard Kwok ING Asia Robert Thomson Jones Day Kit Wilson JPMorgan

Elaine Lo JSM Young Jay Ro Kim & Chang Anthony Webster Maples and Calder Brett Graham Morgan Stanley James Bidlake Morgan Stanley Gillian Meller MTR Bharat Sundavadra Noble Group Peter Siembab Nomura Philana Poon PCCW Ella Wong STAR Angela Mak TOM Group Duncan Bell UBS Hugh O’Loughlin Walkers

The ALB Law Awards are the market-leading awards for private-practice and in-house lawyers across Asia. In 2010, ALB will once again be managing five major Law Awards events. To ensure your law firm or in-house team is included in the extensive research process, send your contact details to iris@kmimail.com or call Iris Ma on +852 2815 5988 to get your name on the research database. Nominations will be invited from early January. Both self and peer nominations are accepted. Full details of award categories, methodology etc can be found at www.albawards.com ALB China Law Awards 2010 Shanghai 16 April 2010

ALB SE Asia Law Awards Singapore 4 June 2010

ALB Australasian Law Awards 2010 Sydney 6 May 2010

ALB Hong Kong Law Awards Hong Kong September 2010

ALB Japan Law Awards 2010 Tokyo 28 May 2010

www.albawards.com www.legalbusinessonline.com

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In-house perspective >>

More than security As the head of CITIC Securities International’s legal and compliance department team, Philip Ng shares a vision for the company’s international expansion plans

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W

hen the moratorium on the Chinese stock market was lifted earlier this year, activity on the HKSE remained relatively frozen, until CITIC Securities International (CSI) aided China Zhongwang Holdings (Zhongwang) in breaking the ice through its US$1.3bn IPO. This is CSI’s third dual-listing project following the public offerings of China CITIC Bank and China Railway Construction Corporation. CSI acted as the joint sponsor, joint global coordinator and joint bookrunner for Zhongwang Holdings, whose success is rightfully considered a milestone for Philip Ng, the legal head of CSI’s legal and compliance (L&C) department, and his team. CSI has also acted as joint bookrunner, joint sponsor and joint lead manager in the US$5.1bn global offering by Metallurgical Corporation of China, a Fortune Global 500 company. The relationship between the CITIC entities is clearly interlinked: CSI is a wholly-owned subsidiary of CITIC Securities (CS), a Shanghai-listed investment bank. It has assets valued at RMB191.7bn and top rankings in the Chinese capital markets, across its principal business areas of securities brokerage, investment banking and asset management. CS shares are largely owned by China’s state-owned conglomerate, CITIC Group (CG), which has built its name on investing Chinese funds offshore: it also oversees the government’s international and domestic investments. CSI acts as a channel for CS to spearhead its expansion into global capital markets and aims to carry out its core corporate mission of becoming a leading China-focused international investment bank. Ng is responsible for all legal, compliance and company secretarial matters of CSI and its subsidiaries. With a unique and integrated cross-border equities business platform, CSI has an important mission of integrating the domestic and overseas equities businesses of the market. ISSUE 6.10


In-house perspective >>

CSI’s recent landmark deals Deal: Acted as joint sponsor, joint bookrunner and joint lead manager for Metallurgical Corporation of China Ltd IPO Value: US$5.1bn Participating law firms: Freshfields Bruckhaus Deringer, Shearman & Sterling, Tian Yuan Deal: Acted as joint sponsor, joint global coordinator and joint bookrunner for the IPO of China Zhongwang Holdings Value: US$1.2bn Participating law firms: Morrison & Foerster, Jingtian & Gongcheng Deal: Acted as joint sponsor, joint global coordinator, joint bookrunner and joint lead manager of China Railway Construction Co’s IPO in Hong Kong Value: US$5.4bn Participating law firms: Freshfields Bruckhaus Deringer, Baker & McKenzie, DeHeng Law Offices, Jingtian & Gongcheng

offering,” he says. “The scope of work is by and large very similar to a private law firm acting for the sponsor or underwriter.” CSI’s business scope might suggest an image of a big team in support of its endeavours, but the size of the L&C team follows the concept of “it’s not the size of the package that counts”. Despite being comparatively small with only eight staff, the team works closely together. It has different mixtures of legal expertise and is versatile enough to take care of the many kinds of legal and compliance needs of the users. “Our legal and compliance department is currently recruiting more staff to cope with the increasing volume and types of work undertaken by the CSI group and the continuing integration with CS and our cross-border US practices,” Ng says.

“So long as quality services are delivered with a reasonable and expected price tag and there is chemistry in the interaction between the two camps, there is certainly still room for cooperation in the delivery of legal services in a more efficient manner” Philip Ng, CITIC Reaching out

Despite his company’s complex structure, Ng is crystal-clear on his key responsibilities which include advising management in relation to all compliance matters and on legal aspects predominantly relating to investment banks, securities, asset management and proprietary trading. As CSI emerges as a leading provider of high-quality and timely financial services in investment banking, brokerage and equity research, a large amount of Ng’s work involves preparing underwriting services. He likens inhouse work to private practice. “Our corporate finance arm constantly acts as sponsor and underwriter for IPOs in Hong Kong, and L&C is involved in advising on different matters during the IPO process, including underwriting, placing, research, roadshows, settlement logistics and all legal documents in relation to the

Despite having spent only eight months in L&C, he has had rich experience practising in the corporate finance sector. Before going in-house for a change and new challenges, Ng served as a senior associate in Huen Wong & Co in association with international firm Fried Frank. Prior to this he practised law for many years at Simmons & Simmons. “My job as in-house head is very rewarding in terms of the opportunities and much broader areas of practice,” Ng explains. “The scope of my practice area is now obviously much wider. I need to understand thoroughly different aspects of the business and the commercial rationale and complexities behind [that] while devising the best legal solution. I find this more demanding than private practice as it is a given that in-house lawyers’ advice must be commercially sound.” However, he admits that extensive multi-tasking is his greatest challenge.

“This means keeping abreast of the latest legal and compliance developments, particularly in light of the tightening of regulatory compliance environment, while performing multi-tasks in different areas of the practice of law and satisfying higher and increasing demands from frontline on projects and routine tasks at the same time.” Ng’s top three practice areas for outsourcing are litigation, funds and certain financial products, with international law firms the main beneficiaries. “International firms normally have resource advantages, track record and expertise,” Ng says. However, to be placed on the selection list is not easy. “A good working relationship and mutual respect between the in-house team and the external lawyers could greatly enhance the efficiency and quality of the delivery of legal services. Word of mouth is also very important,” Ng explains.

Market conditions

While most lawyers would agree that the slowdown of the economy would have dealt the hardest blow to capital markets, CSI has proven the argument to be otherwise. Hardly affected at all, the securities house is rapidly expanding its business scope. Contrary to common belief, the slowdown has had almost no effect on their legal practice.“Given the recent expansion of the types of businesses engaged by CSI group, I expect to see a continuing expansion of cross-border work in China and the United States and the increasing integration and cooperation between CSI and CS.” What does the Chinese market hold for the cooperation between in-house and private practices? “I’ve noticed that more corporations are starting to build or strengthen their legal and compliance departments. That does not necessarily mean less work for private practice,” Ng says. “So long as quality services are delivered with a reasonable and expected price tag and there is chemistry in the interaction between the two camps, there is certainly still room for cooperation in the delivery of legal services in a more efficient manner.” ALB

“China will benefit greatly from local relationships that are developed by being on-the-ground”

www.asianlegalonline.com

45, stuart mengler, Partner

allens arthur roBinson


Market Data | M&A >>

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ISSUE 6.10


Market Data | capital markets >>

Equity Capital Markets TRANSACTIONS List

China, Hong Kong Sep 9 - Oct 6

NB: Does not include transactions valued at less than than USD10m, best efforts transactions and private placements Issuer

Proceeds (USDm)

Issue Date

Currency

Bookrunner(s)

Sector

China China Metallurgical Constr China Metallurgical Constr

2,779 2,352.5

9/17/2009 9/16/2009

CNY HKD

China Intl Trust & Investment Citicorp / China International Capital / Morgan Stanley / China Intl Trust & Investment

Industrials Industrials

China National Pharma Grp Corp Shanda Games Ltd Yingde Gases Investment Co Ltd China Intl Travel Grp Powerlong Group Beijing Ultrapower Software Co China Vanadium Titano-Magnetit China Peak Shandong Huatai Paper Co Ltd Lepu Medical Technology Co China Shanshui Cement Grp Ltd Ausnutria Dairy (Hunan) Co Ltd Li Lang (China) Co Ltd Alibaba.com Ltd Real Gold Mining Ltd Qingdao Tgood Electrical Co Fujian Nanping Sun Cable Co Nanfang Ventilator Co Ltd ReneSola Ltd Beijing Lanxum New Technology China Gaoxian Holdings Ltd China Biotics Inc Guangdong Jingyi Metal Hldg Co Huagong Tech Co Ltd Henan Hanwei Electronics Co Fujian Sunner Group Henan Splendor Sci&Tech Co Ltd Chongqing Lummy Pharmaceutical Anhui Anke Biotechnology Ltd Xi'an Kaiyuan Holding Group Shanghai Bestway Marine Co Ltd Hunan Boyun New Materials Co Anhui Xinlong Electrical Co Sunwave Commun Co Ltd China Education Alliance Inc Great Group Holdings Ltd

1,295.6 1,043.8 408.6 379.6 354.9 268.5 265.9 222 185.4 174.2 170.3 154.8 151 146.9 130.1 117.2 102.4 80.5 73.6 69.9 69.4 69 68.5 67.2 59.3 58.5 56.8 55.6 52.3 51.8 51.3 42.7 39 36.3 17.4 16.7

9/16/2009 9/24/2009 9/30/2009 9/24/2009 10/2/2009 9/23/2009 9/29/2009 9/22/2009 9/18/2009 9/23/2009 9/23/2009 9/30/2009 9/16/2009 9/14/2009 9/24/2009 9/23/2009 9/30/2009 9/23/2009 9/29/2009 9/23/2009 9/9/2009 9/30/2009 9/11/2009 9/25/2009 9/23/2009 9/29/2009 9/11/2009 9/23/2009 9/23/2009 9/16/2009 9/23/2009 9/16/2009 9/16/2009 9/16/2009 9/30/2009 9/16/2009

HKD USD HKD CNY HKD CNY HKD HKD CNY CNY HKD HKD HKD HKD HKD CNY CNY CNY USD CNY SGD USD CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY USD SGD

China International Capital Co / UBS / Morgan Stanley Goldman Sachs / JP Morgan Goldman Sachs International / Morgan Stanley China Securities Goldman Sachs / Macquarie Equities / ICBC CITIC Securities Citi / Deutsche Bank Credit Suisse Guolian Securities Cinda Securities Credit Suisse / Morgan Stanley BOC International / Macquarie Bank Merrill Lynch / Hongkong & Shanghai Bank UBS Macquarie Equities / Citi GF Securities Industrial Securities Essence Securities Credit Suisse / UBS Guohai Securities UOB Kay Hian Private / Collins Stewart Roth Capital Partners Guosen Securities Hongyuan Securities Sinolink Worldwide Hldgs China Merchants Bank Zhong De Securities Sinolink Worldwide Hldgs Guoyuan Securities First Capital Securities Guoyuan Securities Haitong Securities Guoyuan Securities Hengtai Securities Rodman & Renshaw Inc Daiwa SBCM Singapore

Healthcare High Technology Materials Consumer Products and Services Real Estate High Technology Materials Consumer Staples Materials Healthcare Materials Consumer Staples Retail High Technology Materials High Technology Materials Industrials High Technology Industrials Consumer Staples Materials Industrials Healthcare Consumer Products and Services Consumer Staples High Technology Healthcare Healthcare Retail Consumer Products and Services Consumer Products and Services Energy and Power Telecommunications Consumer Products and Services Consumer Staples

1,277.4 824.3 406.4 345.3 187.7 101.6 59.4 49.1

9/24/2009 9/25/2009 9/23/2009 9/22/2009 9/23/2009 9/18/2009 9/15/2009 9/16/2009

HKD HKD HKD CNY HKD HKD HKD HKD

Deutsche Bank / JP Morgan Secs / Union Bank of Switzerland Credit Suisse / Morgan Stanley Bank of America Merrill Lynch / BOC International JP Morgan Nomura Securities Goldman Sachs Guotai Junan Securities JP Morgan / Macquarie Securities

Real Estate Materials Consumer Products and Services Retail Energy and Power Materials High Technology High Technology

HONG KONG Glorious Property Holdings Ltd China Resources Cement Hldg China South City Holdings Ltd GOME Electrical Appl Hldg Ltd China Everbright Intl Ltd Kingboard Laminates Hldg Ltd China All Access Holdings Ltd Digital China Holdings Ltd

DEBT CAPITAL MARKETS TRANSACTIONS LIST

China, Hong Kong Sep 9 - Oct 6 Issuer

Proceeds (USDm)

Issue Date

Currency

Bookrunner(s)

Sector

Government and Agencies

Real Estate Financials Financials Energy and Power Financials Financials Financials

China Ministry of Railways(China)

4,393.2

9/21/2009

CNY

State Grid Corp of China

2,928.9

9/9/2009

CNY

Industrial Bank Co Ltd Shandong Iron & Steel Grp Co CASC Guangdong Provincial Commun China Power Investment Corp Jiang Yin City Construction Shanghai Electric(Group)Corp Shanxi Taigang Stainless Steel Shanghai Forte Co Land Ltd Hunan Hualing Iron & Steel Grp Xian Yang Constr Invest Guodian Finance Shanghai Wanye Entrp Co Ltd Beiqi Foton Motor Co Ltd Beijing Capital Land Ltd Yanzhou Hui Min Constr Invest Shanxi Expressway Beijing Urban Constr Invest Guangdong Provincial China North Industries Finance

1,464.4 732.6 439.6 439.4 424.7 366.1 293 292.9 278.2 263.7 256.3 219.7 146.5 146.5 146.5 146.5 146.5 131.8 117.2 117.2

9/9/2009 9/16/2009 9/16/2009 9/14/2009 9/9/2009 9/15/2009 9/28/2009 9/9/2009 9/21/2009 9/28/2009 9/30/2009 9/23/2009 9/16/2009 9/22/2009 9/23/2009 9/23/2009 9/28/2009 9/28/2009 9/18/2009 9/22/2009

CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY

CITIC Securities / Jianyin Securities / Guotai Junan Securities / Essence Securities / BOC International / China International Capital CITIC Securities / Southwestern Securities / BOC International / Everbright Securities / Guotai Junan Securities / China Merchant Securities CITIC Securities / Goldman Sachs / UBS Securities / Industrial Securities Industrial & Comm Bank China Industrial & Comm Bank China Industrial & Comm Bank China China Everbright Bank Guosen Securities Industrial & Comm Bank China Industrial & Comm Bank China China International Capital Bank Communications China Galaxy Securities China Everbright Bank China Dragon Securities Huaxi Securities China Securities Chinalion Securities China Merchants Bank Zhongfu Securities China International Capital China Everbright Bank

499 38.7 38.7 32.3 26 22.3 20.6

9/10/2009 9/18/2009 9/18/2009 9/11/2009 9/25/2009 9/10/2009 9/25/2009

USD HKD HKD HKD HKD HKD HKD

JP Morgan HSBC HSBC HSBC Standard Chartered Bank Standard Chartered Bank Hongkong & Shanghai Bank

Energy and Power Financials Materials Industrials Financials Energy and Power Industrials Financials Materials Real Estate Materials Industrials Financials Real Estate Industrials Real Estate Industrials Industrials Industrials Industrials Financials

hong kong Henderson Land Dvlp Co Ltd Hongkong Electric Finance Ltd Sun Hung Kai Prop Cap Mkt Ltd HKCG Finance Ltd Wharf Finance (BVI) Limited Hong Kong Mortgage Corp Ltd Wharf Finance (BVI) Limited

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Catch a great job as the market improves. In-house Greater China Legal Counsel Shanghai Senior-level position for a

driven professional to cover the Greater China region in a challenging FMCG business. Only those with a strong commercial law background with the ability to navigate change and create acceptable solutions will excel. Strong communication skills are required to influence management and work within a multicultural setting. A stable career record, strong knowledge of FCPA and anti-bribery programs are a must. Must speak and write fluent Mandarin. Ref: 8249/CB

Head of Legal (10-15 yrs pqe) Hong Kong Be responsible for providing a full range of legal counsel advice and representation to this famous regional bank on matters that affect its business operations. Only candidates with substantial knowledge of banking operations, laws and regulations along with commercial and general management skills will be considered. This high profile role will facilitate, develop, and promote relationships between the bank and all relevant regulators, as well as key members of the business. Good English and native Cantonese/Mandarin are needed. Ref: 8324/CB VP Compliance Hong Kong Manage sales and trading compliance matters in the APac region for a financial giant. Must have substantial experience with a financial institution covering equities or fixed income along with in-depth knowledge of regulatory and compliance requirements. Manage relationships and communication with regulators and industry contacts. Excellent verbal and written English communication skills are necessary. Ref: 8347/CB Compliance Manager (5 yrs exp) Shanghai Do you have experience in international trade compliance with a focus on export compliance or technology transfer issues? If yes, then take your career to the next level within a powerful US based conglomerate in a strategic role. You need working knowledge of US export regulations and of Chinese international trade regulations. A graduate degree in law or international business is preferred. Fluent English and Mandarin are required along with superior communication, interpersonal and leadership skills. Ref: 8329/CB Compliance Officer Hong Kong Preeminent regional bank seeks either

a compliance officer or qualified lawyer with a background in corporate finance, principal finance and/or research experience with major investment banks. Must have solid securities industry experience and be well versed in HK and China regulatory issues. Fluency in English and Chinese is required. Ref: 8320/CB

Legal Counsel (3-6 yrs pqe) Hong Kong Do you have funds expertise? A reputable international investment house invites you to join a friendly team and work on APac issues. Prior in-house experience and private practice fund related experience will be highly valued. Must have a positive attitude with a willingness to learn and achieve. Preferred but not required: Mandarin along with another Asian language such as Korean. Ref: 8351/CB

Assistant Legal Counsel (3-5 yrs pqe) Hong Kong Excellent opportunity for a lawyer to assist the Head of Legal within an international insurance company. Lend advice on contracts, products, distribution, transactions and regulatory matters. Ideally, you have solid experience from leading firms, and prior insurance work will be an asset. Must be able to work independently and under pressure, as well as demonstrate good analytical and communication skills. Ref: 8323/CB

Private Practice China Partner (10+ yrs pqe) Shanghai This international law firm is a global market leader and is committed to building on its international platform. Currently, it has an opening for an accomplished partner to grow the China business. You will need a China law background and experience and a portable client base of China work in areas that can leverage off the firm’s strengths in IP, Corporate, M&A and Funds. The position will be based in the firm’s Shanghai office. Excellent English and Mandarin language skills are essential. Ref: 7987/CB Partner Hong Kong Our client is a leading Wall Street law firm with a growing

presence throughout China. It is currently looking for a group of senior lawyers to leverage off of its successful China practice. Of particular interest, are Partners with a strong record in Corporate Finance and M&A work gained at a leading firm. Our client offers top contacts with major Chinese clients and seeks Partners with proven track records in areas such as securities, equity capital markets, M&A and project finance. Ref: 8350/CB

Legal Consultant (2 yrs pqe) Beijing A reputable US firm seeks a PRC qualified lawyer to be based in their well established Beijing office. You will need to have a minimum of 2 years experience in Hong Kong IPO transactions; other relevant experience will be a plus. Excellent English and native Chinese language skills are required. Ref: 8306/CB

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China Legal Business 6.10