China Legal Business 6.9

ISSUE 6.9

Private anti-trust litigation

Focus first on growth and change for future years

反垄断诉讼业务前景看好

M&A

Increasing deal activity keeps firms in positive territory

中资企业海内外并购热潮不断升温

ALB Special Report: China 09

Insights into the nation’s legal industry development

全国法律服务市场发展年度特别报告

CHINA

度 年 9 200

二十五位热门律师

The lega l h igh flyer s o f the ye ar n DEALS ROUNDUP n US, UK REPORTS n M&A n LATEST CAPITAL MARKETS DATA n APPOINTMENTS

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Editorial >>

Permanent revolution

W

e do the domestic work, they do the international work.

Once it was fairly easy to understand the respective roles of domestic and international firms.

But as a manifestation of the growing dubiousness of the legal industry’s traditional pecking order, you need look no further than the current economic environment, in which local firms are better positioned to respond to the changing needs of clients.

Domestic firms have been playing lead roles on some of the larger Chinese-based transactions that have been struck over the last few months, giving an indication of how things are changing. These deals are notable, not only for the new economic conditions in which they were closed, but also for the local firms who are closing them.

It is the domestic firms who are increasingly taking on the mantle of lead counsel, a role once thought to be the exclusive domain of international law firms. It is clear there is a permanent revolution underway.

Externally, Chinese businesses are now looking more to make their own outbound acquisitions – rather than simply inviting inbound investment, as many companies did in the past. While international firms remain the competitive driver in this domain, a number of domestic firms are catching up fast.

The local firms are effecting exponential increases in head count, establishing more offices both regionally and globally, and luring the best and brightest legal talent from international law firms.

Our home-grown firms are becoming international themselves, and the process can only accelerate given the economic growth expected in China over the coming years.

IN THE FIRST PERSON “Listing on the ASX gives Chinese companies a presence in Australia, with which they might find it easier to make further investments” Andrew Hensher, co-head of Chang Pistilli & Simmons PRC business unit (p11)

“The increase in Chinese

companies undertaking M&A activities offshore is a clear and growing trend and one that plays to the strengths of international firms” Antony Dapiran, M&A partner, Freshfields (p39)

“Firms need to be able to

demonstrate to clients that they have the ability to do the big deals” David Liu, partner, Jun He (p48)

It is the domestic firms who are increasingly taking on the mantle of lead counsel, a role once thought to be the exclusive domain of international law firms CHINA

2

ISSUE 6.9

CONTENTS >>

contents 32

ALB China issue 6.9

10

42

12

COVER STORY

32 ALB Hot 25 Over the past year, a host of legal practitioners have performed outstandingly in their field, or courted controversy and turned heads in the legal arena. Here is ALB China’s pick

ANALYSIS 10 Sino-Australian M&A PRC firms are still banking on their alliances with Australian firms as Sino-Australian M&A continues to surge, despite some recent tensions between China and Australia 12 Private anti-trust litigation As the new AML regime settles in and enforcement increases, lawyers are anticipating issues surrounding cartels; abuse of dominant market position will soon be the main driver of business and development 14 FCPA and corporate compliance This year is shaping up to be a watershed one for the United States’ Foreign Corrupt Practices Act (FCPA). What are the implications for lawyers, and those domestic and international companies in China?

FEATURES 38 M&A Globalising Chinese companies have taken centre stage as the world recovers from recession, with the best minds in the legal industry sought for new and exciting challenges

4

42 ALB Special Report: China 09 Despite record-breaking deal volumes, the nation hasn’t been immune from the downturn.

Law firms have ploughed on by building up their international profiles and following big deals

COMMENTARY

REGULARS

24 International tax Azure Tax

6 • • • • • • • • • • •

NEWS Kirkland & Ellis opens Shanghai office Arrested Rio Tinto employees find lawyers Dacheng offers patent agency services Herbert Smith gears up arbitration practice Salans real estate head joins JT&N Zhong Lun adds new partners Great Wall Alliance promotes eight to partner Italian firm targets China expansion Minter Ellison eyes Beijing presence Law firms help transform waste into power Clifford Chance and Linklaters advise on CCB acquisition

19 UK report

22 Regulatory Paul Weiss 23 Arbitration SIAC

25 Singapore Loo & Partners

PROFILES 16 Blancpain 17 Guantao 27 AllBright 31 Lifang 45 Kangqiao 49 King & Wood 51 Fangben 52 Diaz Reus

21 US report 26 M&A Deals Data 29 Capital Markets Deals Data ISSUE 6.9

CHINA

NEWS | deals >>

| CHINA/ AUSTRALIA |

deals in brief

►► China Investment Corporation (CIC) / Goodman Group – investment A$500m Firm: Freehills Lead lawyers: Leon Pasternak, Fiona Smedley, Wendi Gwynn Client: CIC Firm: Allens Arthur Robinson Lead lawyers: Stuart McCulloch, Tom Story Client: Goodman Group

Fiona Smedley Freehills

• One of the Leon Pasternak first major Freehills partnerships between an Australian listed property trust (LPT) and Chinese interests

| CHINA/AUSTRALIA | ►► Yanzhou Coal Mining – Felix Resources acquisition

US$2.9bn Firm: Allens Arthur Robinson Lead lawyer: Andrew Knox Client: Felix Resources Firm: Corrs Chambers Westgarth Lead lawyer:Andrew Lumsden Client: Yanzhou Coal Mining Company

Andrew Knox Allens Arthur Robinson

HEADLINE DEAL

Firm: King & Wood Client: Yanzhou Coal Mining Company Firm: Baker & McKenzie Client: Yanzhou Coal Mining Company • This deal gives Yanzhou Coal a presence in coal mining in Australia. Post-acquisition, Felix Resources will spin off its subsidiary, South Australian Coal Corporation • If completed, this will be the largest-ever Chinese deal in the Australian coal sector

“China is a substantial consumer of many Australian resources. There is no reason why the rising interest will not follow the same pattern as past investment influxes. The outcome will be closely scrutinised as there appears to be a significant appetite for more deals” Andrew Knox, Allens Arthur Robinson 6

• Cross-border partnership involved CIC committing A$200m to a finance facility alongside Macquarie Bank, bringing the overall finance facility to A$485m • Goodman has agreed to issue 255.3 million options over stapled securities to the facility providers

| CHINA/ AUSTRALIA | ►► China Everbright – Macquarie Bank JV US$1.5bn Firm: Paul Hastings Lead lawyers: Vivian Lam, Raymond Li Client: China Everbright Firm: Mallesons Stephen Jacques Vivian Lam Lead lawyers: John Paul Hastings Sullivan, Hayden Flinn Client: Macquarie Bank • Joint venture is aimed at establishing two funds for Chinese infrastructure investments • Both Macquarie and CEL have committed to jointly contributing US$100m

| CHINA/ AUSTRALIA | ►► Baosteel/ Aquila Resources – JV Undisclosed Firm: Corrs Chambers Westgarth Lead lawyer: Adam Handley Client: Baosteel Firm: Mallesons Stephen Jacques Client: Aquila

Adam Handley Corrs Chambers Westgarth

• Aquila’s key assets include Isaac Plains coal mine (Qld); Eagle Downs Coal project (Qld), Belvedere Coal project (Qld), West Pilbara iron ore project (WA), Thabazimbi iron ore project (South Africa) and Avontuur coal project (South Africa)

| CHINA/ SINGAPORE | ►► China Pharma – Sihuan Pharmaceutical Holdings acquisition US$318m Firm: Commerce & Finance Client: China Pharma Firm: KhattarWong Partnership Client: Sihuan Pharmaceutical Holdings Firm: WongPartnership Client: China Pharma Firm: Conyers, Dill & Pearman Client: China Pharma Firm: Paul Weiss Lead lawyer: Jack Lange Client: China Pharma

Jack Lange Paul Weiss

• China Pharma Holdings, which is a subsidiary of Morgan Stanley Private Equity Asia III Holdings (Cayman), launched a voluntary conditional cash offer to acquire the entire issued share capital of Sihuan • Sihuan is engaged in the research, production and sale of pharmaceutical drugs, with a focus on cardio-cerebral vascular drugs

ISSUE 6.9

NEWS | deals >>

| HONG KONG |

►► YOUR MONTH AT A GLANCE Firm

Jurisdiction

Deal name

AllBright

China

Shenergy Group bond issuance

China

Shenzhen Gas Corp IPO

China/Australia

Yanzhou Coal Mining - Felix Resources acquisition

2,900

China/Australia

China Investment Corporation – Goodman Group investment

500

Allen & Overy

Hong Kong

CLP Power Hong Kong MTN increase

2,500

Debt market

Baker & McKenzie

China/Australia

Yanzhou Coal Mining - Felix Resources acquisition

2,900

M&A

Chen & Co

China

PE consortium - Chery Automobile stake acquisition

424

M&A

Clifford Chance

China/Hong Kong/ UK/US

China Construction Bank – AIG Finance (Hong Kong) acquisition

70

M&A

Commerce & Finance

China/Singapore

China Pharma – Sihuan Pharmaceutical Holdings acquisition

undisclosed

M&A

Conyers, Dill & Pearman

China/Singapore

China Pharma – Sihuan Pharmaceutical Holdings acquisition

undisclosed

M&A

Corrs Chambers Westgarth

China/Australia

Yanzhou Coal Mining – Felix Resources acquisition

2,900

M&A

China/Australia

Baosteel – Aquila Resources JV

Fangda Partners

China

TPG LLP, Legend Holdings and Hony Capital – Wumart Stores stake acquisition

213

M&A

Freehills

China/Australia

China Investment Corporation – Goodman Group investment

500

FDI

| CHINA/ UK |

Freshfields Bruckhaus Deringer

China/UK

Sinochem Petroleum Exploration & Production – Emerald Energy acquisition

876

M&A

►► Sinochem Petroleum Exploration & Production – Emerald Energy acquisition

China/Hong Kong

Air China – Cathay Pacific stake acquisition

825

M&A

Harneys Westwood & Riegels

Hong Kong

CLP Power Hong Kong MTN increase

Haiwen & Partners

China

TPG LLP, Legend Holdings and Hony Capital – Wumart Stores stake acquisition

213

M&A

Jingtian & Gongcheng

China

PE consortium - Chery Automobile stake acquisition

424

M&A

KhattarWong Partnership

China/ Singapore

China Pharma – Sihuan Pharmaceutical Holdings acquisition

undisclosed

M&A

King & Wood

China/Australia

Yanzhou Coal Mining – Felix Resources acquisition

2,900

M&A

China

Shanghai ShenKai Petroleum & Chemical Equipment Corporation IPO

China/US

Waste Management – Shanghai Environment Group stake acquisition

Latham & Watkins

China/US/Hong Kong

Trina Solar bond issuance

Linklaters

Hong Kong

CLP Power Hong Kong MTN increase

China/Hong Kong/ UK/US

China Construction Bank – AIG Finance (Hong Kong) acquisition

China/Australia

China Everbright – Macquarie Bank JV

China/Australia

Baosteel – Aquila Resources JV

►► CLP Power Hong Kong MTN increase US$2.5bn Firm: Linklaters Client: Deal arrangers Firm: Allen & Overy Lead lawyers: Andrew Harrow, Walter Son Client: Power Hong Kong Financing

Allens Arthur Robinson

Walter Son Allen & Overy

Firm: Harneys Westwood & Riegels Lead lawyer: Indira Birkwood Client: Power Hong Kong Financing • CLP Power Hong Kong Financing increased its previous US$1.5bn MTN program to US$2.5bn

US$876m Firm: Memery Crystal Lead lawyers: Andrew Titmas, Merrill April, Tim Crosley Client: Emerald Energy Christopher

Firm: Freshfields Wong Freshfields Lead lawyers: Graham Watson, Chris Wong, Michael Han, Nicholas Squire Client: Sinochem International • Sinochem Petroleum Exploration & Production has launched public offer to acquire the entire outstanding share capital of UK oil company Emerald Energy • Emerald Energy is Memery Crystal’s longstanding client • Emerald is a UK-based company engaged in the exploration and production of hydrocarbons. The company's shares trade on the London Stock Exchange

www.legalbusinessonline.com

Mallesons Stephen Jaques

Value (US$m)

Deal type 571

undisclosed

Debt market Equity market M&A FDI

undisclosed

2,500

undisclosed

Debt market

Equity market

140

M&A

129

Debt market

2,500

Debt market

70

M&A

1,500

JV

undisclosed

JV

Hong Kong

Hong Kong and Shanghai Hotels loan facility

129

Finance

Memery Crystal

China/UK

Sinochem Petroleum Exploration & Production Emerald Energy acquisition

876

M&A

Milbank

China/US

Waste Management – Shanghai Environment Group stake acquisition

140

M&A

Paul Hastings

China/Australia

China Everbright – Macquarie Bank JV

China/UK/Hong Kong

CIMC Enric equipment acquisitions

China/Singapore

China Pharma – Sihuan Pharmaceutical Holdings acquisition

Paul Weiss

1,500

JV

543

M&A

undisclosed

M&A

7

NEWS | deals >>

| CHINA / HONG KONG | ►► Air China – Cathay Pacific stake acquisition US$825m Firm: Freshfields Lead lawyers: KayIan Ng, Alan Ryan, Michael Han Client: Air China

| CHINA / UK / HONG KONG |

Firm: Slaughter and May Clients: Hony Capital and TPG LLP

►► CIMC Enric equipment acquisitions

• Credit Suisse was the sole financial advisor to Wumart • After the new shares are issued three investors will hold a combined 10.9% stake in Wumart Kay-Ian Ng

Freshfields • Air China has added an additional 12.5% stake in Cathay Pacific from CITIC Pacific

• Deal will raise Air China’s stake to 29.99% • CITIC was represented by in-house counsel in the transaction

| CHINA/ HONG KONG | ►► Swire Pacific – Cathay Pacific stake acquisition HK$1,013m Firm: Slaughter and May Lead lawyer: Lisa Chung Client: Swire Pacific • Swire Pacific and CITIC Pacific have entered into an agreement for Swire to purchase Cathay Pacific shares from CITIC Pacific for an aggregate consideration of approximately HK$1,013m

• TPG and Hony Capital will each get a seat on the company’s board

| CHINA / HONG KONG / UK/US | ►► China Construction Bank (CCB) – AIG Finance (Hong Kong) acquisition US$70m Firm: Clifford Chance Lead lawyers: Amy Lo, Simon Cooke Client: American International Group Firm: Linklaters Client: China Construction Bank

Amy Lo Clifford Chance

• CITIC was represented by in-house counsel in the transaction

• Acquisition will enable AIG to raise money to repay government loans

US$213m Firm: Haiwen & Partners Client: Wumart Stores Nicholas Norris Firm: Skadden Skadden Lead lawyer: Nicholas Norris Client: Wumart Stores

| CHINA | ►► PE consortium – Chery Automobile stake acquisition US$424m

Firm: Paul Hastings Lead lawyers: Raymond Li, Phoebus Chu Client: CIMC Enric Phoebus Chu Paul Hastings

• Enric expanded its transportation, storage and equipment business by acquiring equipment Raymond Li in China, Paul Hastings Netherlands, Denmark and Belgium

• This is the first transaction of its kind within the transportation, storage and processing equipment manufacturing industry

Firm: Chen & Co Lead lawyers: Frank Chen and Lin Zhong Client: PE consortium Firm: Jingtian & Gongcheng Lead lawyer: Xiang Zhenhua Client: Chery Automobile

Frank Chen Chen & Co

• Investment Lin Zhong Chen & Co is one of the largest PE investments of the year and was successfully executed in less than 70 days • Chery filed its application for an IPO with the CSRC prior to the negotiations

| CHINA | ►► Shenzhen Gas IPO Undisclosed

• Upon completion, Swire Pacific's shareholding in Cathay Pacific will increase from around 39.97% to approximately 41.97%

►► TPG LLP, Legend Holdings and Hony Capital – Wumart Stores stake acquisition

US$543m

• Enric is now among the largest international manufacturers and servicers of transportation, storage and processing equipment for chemical and liquid food industries

• Under the terms of agreement, CCB will also acquire the repayment of intra-group loans and deposits of US$557m

| CHINA |

8

Firm: Fangda Partners Clients: Hony Capital and TPG LLP

| CHINA | Simon Cook Clifford Chance

• Advice on tax matters was received from Clifford Chance offices in London and New York

"We expect to see more transactions of this nature, as the region's financial institutions realign their operations and adjust balance sheets, to take advantage of continued recovery" Simon Cooke, Clifford Chance

►► Shenergy Group bond issuance US$571m Firm: AllBright Lead lawyers: Shen Guoquan, Wu Hongwei Client: Shenergy Group • Shenergy Group, parent of Shenergy Co Ltd will start this year's second issuance of MTNs worth RMB4bn • The Shanghai-based firm earlier raised RMB3bn through issuing the first batch of medium-term notes this year, in order to replenish working capital and improve debt structure.

• China International Capital Corporation Limited (CICC) is the leading underwriter of this transaction • This transaction is co-sponsored by China Construction Bank

Firm: AllBright Lead lawyers: Shen Guoquan, Jiang Yigang, Zhang Xianzhong Client: Shenzhen Gas

Shen Guoquan Allbright

• Guosen Securities is the underwriter of the deal • Shenzhen's local state-owned assets regulator is the largest shareholder in Shenzhen Gas, holding a 60% stake • Hong Kong & China Gas owns 30% stake

| CHINA / US / HONG KONG | ►► Trina Solar bond issuance US$129.3m

Firm: Latham & Watkins Lead lawyers: David Zhang, Allen Wang Client: Trina Solar ISSUE 6.9

NEWS | deals >>

• Trina Solar is a China-based manufacturer of solar photovoltaic products • The transaction, representing David Zhang, 450m ordinary Latham & Watkins shares on the NYSE, was completed and closed on 3 August 2009 • Goldman Sachs (Asia) LLC and Credit Suisse Securities (USA) LLC acted as joint bookrunners

►► YOUR MONTH AT A GLANCE (CONT) Firm

Jurisdiction

Deal name

Value (US$m) Deal type

Reed Smith

China/UK

EIS Optics – Oerlikon Optics acquisition

undisclosed

M&A

Shanghai Runhe

China/ US

Waste Management – Shanghai Environment Group stake acquisition

140m

M&A

Skadden

China

TPG LLP, Legend Holdings and Hony Capital Wumart Stores stake acquisition

213m

M&A

Slaughter and May

China/Hong Kong

Swire Pacific – Cathay Pacific stake acquisition

N/A

M&A

China

TPG LLP, Legend Holdings and Hony Capital Wumart Stores stake acquisition

213m

M&A

China/Singapore

China Pharma – Sihuan Pharmaceutical Holdings acquisition

undisclosed

M&A

Wong Partnership

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

Please contact

alb@keymedia.com.au

61 2 8437 4700

| CHINA | ►► Shanghai ShenKai Petroleum & Chemical Equipment IPO Undisclosed Firm: King & Wood Lead lawyers: Huang Xiaoli, Jin Qingjun Client: ShenKai • Shenkai is a high-tech enterprise mainly engaged in researching, developing and manufacturing petroleum exploration instrument and petroleum machinery • Founded in 1993, Shenkai's major customers are China's three top oil companies – China National Petroleum; China Petrochemical and China National Offshore Oil

| HONG KONG | ►► Hong Kong and Shanghai Hotels loan facility US$129m Firm: Mallesons Lead lawyer: Steven Christopher Client: HSH Financial Services • Luxury hotel and property group The Hong Kong and Shanghai Hotels loaned US$129m term facility guaranteed by HSH • Proceeds used for refinancing existing debt and for corporate purposes of HSH and its subsidiaries • Mallesons advised on structuring, negotiations and documentation of facility with a group of seven international banks

| CHINA / UK | ►► EIS Optics – Oerlikon Optics acquisition Undisclosed Firm: Reed Smith Lead lawyer: James Wilkinson Client: EIS Optics • EIS Optics is a UK-based company formed for the purpose by London based PE firms FF&P Private Equity and Nova Capital Management • As part of the deal, all shares of Oerlikon Optics Shanghai and certain relevant assets and employees in China, Liechtenstein, the US, Japan and Taiwan in related Oerlikon businesses, will be transferred to EIS Optics. www.legalbusinessonline.com

• Company will acquire 40% stake in Shanghai Environment Group, a leading provider of Zhang Yi environmental King & Wood services, from Shanghai Chengtou Holding Co • Milbank has been busy advising investment into this sector. The firm recently advised the Japanese sponsors on the 50MW Datang wind-generating project in the Inner Mongolian Autonomous Region • Milbank also acted for GCL-Poly Energy, a leading integrated green energy enterprise, when it expanded its portfolio in July by acquiring Jiangsu Zhongneng Polysilicon Technology Development for US$3.4bn

“This transaction is the single-largest investment in China’s solid waste management to date, and the target company is the leading player in the domestic market.

This makes the handling of this deal very different from other M&A transactions” Zhang Yi, King & Wood

| CHINA / US | ►► Waste Management – Shanghai Environment Group stake acquisition US$140m Firm: Milbank Lead lawyer: Anthony Root Client: Waste Management Firm: King & Wood Anthony Root Lead lawyers: Milbank Zhang Yi, Alan Du Client: Waste Management Firm: Shanghai Runhe Lead lawyer: Robert Li Client: Shanghai Environment Group

9

NEWS | analysis >>

Analysis >>

Outbound M&A southbound deals head north Despite recent political tensions with Australia after the Rio Tinto and Chinalco sagas, PRC firms are still banking on alliances with Australian firms paying off as Sino-Australian M&A continues to surge

J

ust a few months ago, the talk was all about the failed Rio-Chinalco deal, but the sudden surge in Chinese/ Australian investments that followed has left jaws hanging.

“The failed Rio-Chinalco deal has caused many to expect a slowdown in Chinese interest in Australia, but it has been proven otherwise,” said Andrew Hensher, co-head of Chang Pistilli & Simmons’ PRC business unit.

“The business relationship between China and Australia is strong enough to withstand one mere setback.”

China’s investments have recently come under the spotlight with the arrest of four Rio employees, causing a widespread belief that tension exists between the countries. This was quickly diverted by the biggest Australia-China trade deal ever announced – ExxonMobil and PetroChina’s US$41bn liquefied natural gas deal.

10

The gas sale agreement came only weeks after Yanzhou Coal’s acquisition of Brisbane-headquartered Felix Resources, which will be the largest-ever Chinese deal in the Australian coal sector once completed. In this deal, Yanzhou engaged Corrs Chambers Westgarth, King & Wood and Baker & McKenzie for legal advice in different jurisdictions. Felix was advised by Allens Arthur Robinson.

Growing Chinese corporate activity in Australia has encouraged law firms there to develop their Chinese practices, with Australian firms engaged on IPO work having significant bilingual capabilities.

Minter Ellison Adelaide has a dedicated China team, Gilbert + Tobin has developed a strategic alliance with King & Wood, and another top-tier firm – Freehills – has formed an alliance with TransAsia Lawyers. “The increase is due to a number of factors, including the

ability of the Chinese to provide capital and funding, the value of the Australian dollar and the policy of the Chinese government to encourage offshore investment,” said Campbell Davidson, head of Allens Arthur Robinson’s M&A practice in Hong Kong.

Hungry for deals In 2006, Chinese investment in Australia was worth about A$3.5bn, while last financial year investment applications rose to A$10bn, and they may hit A$30bn in 2009. While the majority of China’s outbound investments are in the resource sector, other industries also feature.

For example, take the recent A$800m investment in Australia’s property trust Goodman Group, by China Investment Corporation (CIC).

The fund engaged Freehills for legal advice, while Goodman Group hired ISSUE 6.9

NEWS | analysis >>

Allens Arthur Robinson for advice.

“CIC is very sophisticated ... its successful investment in Australia will give Chinese enterprises greater comfort,” said Leon Pasternak, who is a Freehill’s partner and corporate advisory team member.

Earlier this year, China’s Haier Group acquired a 20% stake in the struggling New Zealand white goods manufacturer Fisher & Paykel.

The strategic investment will boost Haier’s profile and ambition to grow internationally. Freehills advised Fisher & Paykel and Clayton Utz advised Haier on Australian law.

Allens lawyers also note increased interest in agriculture, dairy and fisheries industries from Chinese investors. This surge has already prompted Australia’s Federal Treasurer to release new guidelines setting out principles considered, in relation to investment proposals by and from foreign governments.

Investment policy In addition to the influx of direct investments, Chinese companies are looking to raise funds from listing on the Australian Securities Exchange (ASX). Three manufacturers from the mainland have launched IPOs in Australia this year.

Having to wait for up to two years to list on the domestic stock exchange, the ASX is considered a fast track by Chinese companies. This policy also benefits companies looking to raise funds locally for potential future Australian investments. “Listing ... gives Chinese companies a presence in Australia, [where] they might find it easier to make further investments within Australia,” said Hensher.

“The relatively straightforward ASX listing requirements makes it an attractive proposition for smaller Chinese companies,” said Pierre Lau, a senior associate at Melbourne firm Chambers & Co. “To smaller companies in Asia, Australia’s business environment ... and market track record over the last decade also makes the ASX a more viable option, without sacrificing sophistication.”

Still, only a few Chinese companies have opted for an ASX listing. “It is hard to say if there is a window of opportunity – everyone is probably www.legalbusinessonline.com

waiting on more positive and consistent signals coming from the equities market in general,” said Jonathan Murray, a partner at independent Perth corporate firm Steinepreis Paganin. The firm was responsible for the 2007 listing of YTC Resources, which is backed by the Yunan Tin Group of China.

It seems Rio-Chinalco has done little to dampen Chinese enthusiasm for the Great Southern Land. ALB

“Listing on the ASX gives Chinese companies a presence in Australia, with which they might find it easier to make further investments” andrew hensher, co-head prc business unit, chang pistilli & simmons

►► PRC investments in Australian resources companies 2008/09 China

Australia

Value US$m

China Minmetals

OZ minerals

Hunan Valin Iron and Steel

Fortescue Metals

2,390

Sinosteel

Midwest

China Nonferrous Metal Mining Group

Lynas Corporation

186

Jinchuan Group

Fox Resources

N/A

Sinopec Group

AED Oil

561

Zhongjin Lingnan

Perilya

Sinosteel

Murchison

Yanzhou Coal

Felix Resources

PetroChina

ExxonMobil

357 1,400

55 200 3,300 41,000

►► PRC companies listed on the Australian Securities Exchange PRC Company

Industry

Listing code

Australian representation

Time of listing

TWT Group

Outdoor furniture manufacturing

TWT

Tindall Gask Bentley

2007

Mesbon China Nylon

Nylon manufacturing

MES

Minter Ellison Adelaide/ Tindall Gask Bentley

2007

Treyo Leisure and Entertainment

Electronic mah-jong table manufacturing

TYO

Deacons Melbourne

2009

Thomas Bryson International

Textile and home decor manufacturing and distribution

TBI

Minter Ellison Adelaide

2009

Shenhua International

Textile manufacturing

SHU

Chambers & Co

2009

中国继续大刀阔斧南下投资

数

月前，中国铝业收购力拓受挫成为业内热议 的话题。但此后不久，中国赴澳投资陡增， 大有志在必得之势。Chang Pistilli & Simmons 中 国业务部联合主管 Andrew Hensher 认为：“中国 铝业收购力拓受挫之后，业内普遍预计中国赴澳投 资的脚步会有所放缓。但实际情况却正好相反，中 国与澳大利亚之间拥有稳固的商业合作关系，足以 消化单笔交易受挫带来的不利影响。” 自中国铝业竞标收购力拓以来，近期中国投资澳大 利亚的项目开始受到普遍关注。四名力拓员工的被捕 导致业界普遍认为，中国与澳大利亚之间将不可避免 的出现紧张关系。 当埃克森美孚与中国石油近期就价值410亿美元的 液化天然气交易达成一致时，所有人的目光又迅速转 向这一中澳企业之间规模最大的交易。 就在埃克森美 孚与中国石油签订天然气销售协议数周前，兖州煤业 宣布收购总部位于布里斯班的Felix Resources，一旦

该交易完成，将成为中国在澳大利亚煤炭领域进行的 最大规模投资。 受近期中澳之间大规模并购交易浪潮的推动，澳大 利亚律师事务所普遍收入颇丰。兖州煤业委托 Corrs Chambers Westgarth、金杜和贝克•麦坚时担任不同 司法管辖地的法律顾问，Felix 则聘请安德慎律师事务 所担任法律代表。 安德慎香港办事处中国并购业务部主管 Campbell Davidson 表示：“业务量激增受诸多因素影响，包括 中国具备提供资本和资金的实力、澳元汇率以及中国 政府鼓励海外投资的政策。” 由于中国投资在规模不大的基础之上快速增 长，Davidson 表示，事务所的业务重点也出现变化， 由以往协助澳大利亚企业赴中国投资转为协助越来越 多的中国客户赴澳大利亚投资。2006年，中国赴澳投 资规模约为35亿美元，上一财年的投资额升至100亿 美元，今年可能达到300亿美元。

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NEWS | analysis >>

尽管中国的境外投资主要集中于资源领域，但目 前已有明显趋势表明，中国正加大在资源领域以 外的投资。 中国投资有限责任公司（中投）是中国的主权财 富基金，近期向澳大利亚房地产信托公司嘉民集团 投资8亿澳元，即是最新趋势的有力印证。在完成 赴澳投资的过程中，该基金聘请澳大利亚本地律师 事务所 Freehills 担任法律顾问，嘉民集团则聘请 安德慎为双方合作项目提供顾问服务。 作为中投法律代表参与该交易的 Freehills 合伙人 Leon Pasternak 表示：“中投是经验丰富的投资人， 如该公司赴澳投资获得成功，将会推动其它中国企 业赴澳投资。” 今年初，中国海尔集团收购困境重重的新西兰白 色家电制造商菲雪品克(Fisher & Paykel) 20%的股 权。此次展览投资将提升海尔在全球白色家电市场 的地位，推动海尔实现全球业务增长。菲雪品克聘 请 Freehills 担任法律顾问，海尔则聘请 Clayton Utz 担任澳大利亚法律顾问。 中国投资人在农业、乳品和渔业的投资项目也令安 德慎获益颇丰。受中国投资需求激增的影响，澳大利 亚联邦财政部长发布全新指引，列明企业接受外国政 府投资计划时必须考虑的对外政策原则。 除中国积极赴澳大利亚投资外，中国企业还通过赴 澳大利亚证券交易所（ASX）上市融资。2009年，有 三家来自中国大陆的制造企业在澳大利亚启动 IPO。 较之需要等待两年才能上市的中国国内股票市场， 澳大利亚证交所成为中国企业快捷融资信道。对于有 意在澳大利亚本地筹集资金并可能在未来投资澳大利 亚的企业而言，赴澳大利亚证交所融资有诸多益处。 Hensher 表示：“通过在澳大利亚证交所上市，中 国企业可进入澳大利亚市场，从而使未来在澳大利 亚的投资更为简便。” Chambers & Co 高级律师 Pierre Lau 认为：“澳大 利亚证交所的上市要求相对简明，对小型中国企业更 具吸引力，意味着上市的准入门槛较低。” Lau 认为：“对亚洲地区的小型企业而言，过去十 年内，澳大利大的综合商业环境和市场往绩表现较 为出色，使澳大利亚证交所成为切实可行的选择， 具备成熟市场的条件。” 尽管机会已经成熟，目前赴澳大利亚证交所上市 的中国企业仍然屈指可数。Steinepreis Paganin 合 伙人 Jonathan Murray 认为：“目前市场是否提供有 力机会尚无定论，可能大家都在等待综合股票市场 发出更为积极和一致的信号。”2007年，Steinepreis Paganin 律师事务所曾担任 YTC Resources 在澳大 利亚证交所上市的法律顾问。中国云南锡业集团为 YTC Resources 提供支持。 随着中国在澳大利亚的投资愈发活跃，有必要提出 这样一个问题，即澳大利亚的律师事务所是否做好充 足准备，以把握业务机遇。 中国企业赴澳投资增长有力推动澳大利亚事务所开 拓中国业务。少数曾在中国参与 IPO 项目的事务所具 有良好的双语服务能力。铭德（阿德雷德）律师事务 所拥有专门的中国业务团队，并与中国办事处建立持 续业务关系。TGB律师事务所(Tindall Gask Bentley) 在上海成立办事处，与中国政府和部分中国律师事务 所建立良好合作关系。澳大利亚的 Gilbert + Tobin 律 师事务所与金杜建立战略联合，以便在澳大利亚市场 提供更好的服务。 安德慎律师事务所在中国拥有较大市场份额，在北 京、上海和香港均设有办事处，安德慎对其业务资源 的充足程度十分自信，认为事务所定能应对业务量的 增长。“我们将中国投资人作为业务重点已有较长时 间，随着赴澳投资的增加，我们的亚洲办事处可与有 意赴澳投资的中国投资人建立良好合作关系。” 在澳大利亚事务所获得中国业务过程中，现有的推 荐网络也发挥了重要作用。由于双方签订合作备忘 录，上海锦天城律师事务所推荐 Chambers & Co 参 与神华集团的 IPO 项目。Lau 表示：“中国企业也希望 与具备跨文化事物管理能力并能克服语言障碍的事务 所合作。这些增值服务对我们的中国客户而言具有重 要意义，可帮助我们进一步扩大竞争优势。”

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Analysis >>

Private anti-trust litigation:

The next big wave?

I

n the first year of the AML antitrust regime, legal work has mainly been seen in M&A transactions and merger control. However, anti-trust and competition lawyers anticipate that issues surrounding cartels and abuse of dominant market position will soon be the main focus of development and the driver of business, in coming years.

“Law firms have been active in merger control areas for several years, as it is a fully formed process,” said partner-in-charge of Jones Day’s Beijing office and co-head of the firm’s China anti-trust practice, Peter Wang.

“But development and enforcement on other aspects of the Anti-Monopoly Law, such as cartel and abuse of dominant market position, remains slow. In the end, these areas will have more impact on foreign companies investing [and operating] in China, as well as drive the practice growth,” he added.

Although international firms are

barred from representing clients before Chinese courts, they still have a role to play in domestic court cases.

This assistance is mostly in the form of leveraging their rich experience advising private anti-trust litigation cases on strategy, in major jurisdictions such as Europe and the United States.

In one of the first high-profile anti-trust private litigation cases, Renren and Baidu, search engine giant Baidu sought out lawyer Zhang Yongyi of Beijing’s Dadi Law Firm for legal representation, and engaged international firm Orrick, Herrington & Sutcliffe for strategic advice.

“As anti-trust practice is very new in China, our team was involved to find relevant cases in the US and UK as a source of reference for strategy issues,” Orrick’s intellectual property partner in Beijing, Xiang Wang, said.

He led the firm’s team, which included Washington, DC and London antiISSUE 6.9

NEWS | analysis >>

said Li. The court has postponed issuing a verdict in this case.

Client demand grows

trust and competition partner, Ted Henneberry.

Domestic firms have been gearing up to take a slice of the emerging market. Beijing firm George Wu & Partners, for example, has set up an anti-trust practice team of 20 lawyers and is looking to grow. Li Changqing, a core member of the firm’s practice, represented the plaintiff, Tangshan Renren Information Services.

“It is a brand-new and promising practice, and many law firms have shown great interest in tapping into this area,” said Li. However, being the first to test the law for issues relating to abuse of dominant market position appears to be challenging.

“Because there is a lack of implementing rules and detailed guidelines, and the court system has little experience handling this type of case, it poses many challenges, not only to legal counsels but also for the court,” www.legalbusinessonline.com

While the outcome of this case is pending, some small to medium-sized enterprises (SMEs) have decided to follow suit, using AML as a tool to protect their interests against unfair competition and abuse of monopoly position or monopoly agreements.

Li reported that, so far, more than 20 SMEs have contacted him for advice, with some planning to file a lawsuit. International firms also expect the domestic market to offer positive prospects for AML enforcement and litigation practices.

“Presently, businesses with complaints about anti-competitive conduct look to the courts, since there is no active enforcement by the two state agencies responsible – State Administration for Industry and Trade (abuse of dominance) and National Development and Reform Commission (unlawful pricing practices),” said Orrick’s Ted Henneberry.

“Both agencies are still organising and have yet to publish final rules of procedure or rules establishing what will be targeted. We would eventually expect that China would follow the European model more, with emphasis on state enforcement actions, than private actions as is the case in the US. Either way, we do expect to see more antitrust cases for abuse of dominance and a cartel as the AML takes hold.”

“We would expect that China would follow the European model, with emphasis more on state enforcement actions than private actions, as is the case in the United States” peter wang, partner-in-charge beijing, jones day

Henneberry predicted that more disputes will arise from the conflict between IP and anti-trust. “One other growing part of the practice in China is the tension or conflict between the exercise of intellectual property rights and anti-trust,” he said.

►►The case: Renren and Baidu

• Baidu, the largest Chinese internet search engine company in the world, has become one of the first companies to be challenged under the country’s new AML regime, which began on 1 August 2008 • The company was sued by Tangshan Renren Information Services (Renren) for alleged antitrust violations in relation to Baidu’s “key word advertising” service, which is also known as “paid key word search or listing” • The plaintiff, an information service centre, alleged that Baidu had “monopolised the Chinese search engine market” and had “blacklisted” a Renren subsidiary, after it moved to a lower-tier advertising arrangement with Baidu, decreasing the number of visits to its medical website • According to the plaintiff Baidu enjoys a dominant position, with over 60% of China’s Internet search engine market share, and has abused its dominating position, therefore violating China’s anti-trust laws.

• Renren is claiming RMB1.1m in damages • Baidu sought out lawyer Zhang Yongyi from Dadi for representation, also engaging Orrick Herrington and Sutcliffe for international knowhow and advice on strategy issues. Renren was represented by Li Changqing and Zhai Gemin from George Wu & Partners • The case was tried by the Beijing First Intermediate People’s Court in April 2009, with a verdict yet to be handed down. It is being heralded as one of the earliest high-profile anti-trust private litigation matters in the country

“Full development of an anti-trust practice will be contingent upon how quickly and aggressively the AML is implemented.”

Shanghai-based legal firm Chen & Co is one of the forerunners of AML practice.

Having considerable experience in handling merger control filings, the firm is starting to assist clients with litigation against abuse of monopoly position.

Like many practitioners in the field, partner Lin Zhong believes it will take some time for anti-trust work to reach its full potential, but it will certainly become comparable to other major legal markets.

“As enterprises continue to grow and expand, the concentration of undertakings will increase. And with the legal framework continuing to perfect [itself] and the anti-monopoly enforcement authorities becoming more experienced, the amount of AML private litigation, investigation and enforcement activity will increase strongly,” said Lin. “All of these factors will lead to China becoming another major anti-monopoly jurisdiction.” ALB 13

NEWS | analysis >>

反垄断诉讼：下一波 业务浪潮？

在

反垄断法施行的第一年，法律业务主要集中 于并购交易和合并控制领域。不过，反垄断 和竞争法律师预计，与企业联合和滥用市场主导地 位相关的问题很快将成为主要业务推动因素，同时 也将是未来数年内业务发展的重点。 众达律师事务所北京办事处主管合伙人兼事务所 中国反垄断业务主管 Peter Wang 表示：多年来， 律师事务所一直在合并控制领域表现活跃，该领域 的业务发展已十分成熟。但在《反垄断法》其它方 面的发展和执行情况仍然不够活跃，例如企业联合 和滥用市场主导地位方面。最终，这些方面将对外 国企业投资中国（并开展经营）产生越来越重要的 影响，同时也会对法律业务增长发挥推动作用。” 尽管跨国事务所尚无法在中国作为客户的法律代 表出庭，但仍能协助客户处理国内诉讼案件。协助 形式主要包括，在欧美等主要司法管辖地，充分利 用丰富的法律经验，就诉讼策略为私营企业的反垄 断诉讼提供顾问服务。 人人信息服务中心起诉百度的案件是引起广泛关 注的私营企业反垄断诉讼案件之一，搜索引擎巨头 百度公司委托北京大地律师事务所的张永宜律师担 任法律代表，由跨国律师事务所奥睿担任战略顾 问。奥睿北京办事处知识产权业务合伙人王翔表 示：“由于反垄断业务在中国尚属新兴业务领域， 我们的团队主要负责搜寻美国和英国的相关案例， 作为战略问题的参考。”他负责带领事务所团队参 与该诉讼，其中包括华盛顿和伦敦反垄断和竞争法 合伙人 Ted Henneberry。 诸多中国国内事务所正积极扩充业务团队，希望 在新兴市场中争得份额。以北京的邦道律师事务所 为例，该事务所已建立20位律师组成的反垄断业务 团队，且团队规模仍在扩大中。律师李长青是事务 所反垄断业务的核心成员，在唐山人人信息服务中 心起诉百度的案件中，曾担任原告的法律代表。 李长青表示：“这是全新且前景光明的业务领域， 诸多律师事务所都对该领域兴趣浓厚。”不过，在滥 用市场主导地位诉讼领域率先尝试似乎挑战重重。 他认为：“由于缺乏执行的规则和详细指导原则， 司法体系对此类案件的受理缺乏经验，无论律师还 是法庭都会遇到诸多挑战。”

Analysis >>

Beyond reproach:

FCPA compliance

客户需求增加

尽管此案审理结果尚未宣布，部分中小企业已经决 定紧随其后，利用《反垄断法》保护自己的利益， 反抗不公平竞争和滥用垄断地位或垄断协议。据李 长青律师透露，目前已有20多家中小企业与他接 触，希望得到法律建议，有些正计划展开诉讼。 跨国律师事务所亦预计，中国国内市场的《反垄断 法》执行和诉讼业务前景光明。奥睿的Ted Henneberry 律师表示：“目前，受到反竞争行为困扰的企业正寻求 通过诉讼解决问题，因为国家工商局（滥用主导权） 和国家发改委（非法定价行为）这两个主管部门并无 有效的执法措施。两部门目前仍在进行组织工作，尚 未就最终的管理方法出台具体流程或法规。” 他补充道：“我们预计，中国最终将更多效仿欧 洲模式，与强调私营企业诉讼的美国相比，更注重 国家的执法行动。无论怎样，随着《反垄断法》的 施行，我们预计在滥用主导权和企业联合领域将出 现更多的反垄断诉讼。” 此外，Henneberry 预计，知 识产权和反垄断之间的冲突还将催生更多纠纷。他表 示：“由于行使知识产权与反垄断之间的紧张关系或冲 突不断加剧，这将成为中国另一个业务增长领域。反 垄断业务的充分发展视乎《反垄断法》执行的速度和 坚决程度而定。” 总部位于上海的瑛明律师事务所在 反垄断业务中获益匪浅。瑛明在合并控制诉讼领域 拥有丰富经验，目前开始协助客户处理与滥用市场 主导地位相关的诉讼。与诸多业内其它律师类似， 合伙人林忠认为，反垄断市场充分发挥潜力尚需时 日，但一定与其它主要法律市场具有可比性。

14

A

sia, with its seemingly endless supply of natural resources and capital, its wealth of strong conglomerates and its relative insulation from the toxic assets that catalysed an economic collapse of catastrophic proportions in the West, is being rightly regarded as one of the brightest stars in an otherwise dark economic horizon.

But just as the attention of investors is turning (or returning, as the case may be) to Asia, so too is the attention of regulators, notably those in the United States. Here, both the Department of Justice (DOJ) and the Securities and Exchange Commision (SEC) — the custodians of arguably the world’s most authoritative corporate compliance statute, the Foreign Corrupt Practices Act (FCPA),

have bolstered their resources and manpower as a precursor to increasing their investigations of companies who breach the Act. Asia, particularly China, is in their crosshairs. One story that is particularly popular at the moment is the case of Stern Hu, the head of Anglo-Australian mining giant Rio Tinto’s Shanghai operations. Hu, along with a number of other colleagues, was accused and charged with bribing up to 16 Chinese steel mills to purchase his company’s iron ore, along with the stealing of Chinese state secrets.

To the surprise of many, it is the former charge that may see Hu and Rio Tinto investigated for FCPA violations.

How can a company that is listed in the UK and Australia attract the attention of regulators in the US, you might ask?

ISSUE 6.9

NEWS | analysis >>

Quite simply, because Rio Tinto has ADRs that trade on the NYSE (NYSE: RTP) — so wide is the FCPA’s purview.

“The FCPA doesn’t only apply to US companies or citizens,” said Walter Ricciardi, a New Yorkbased partner with Paul Weiss. “The law applies to companies listed in the US, or [those who] have securities listed in the US, even if they are Walter Ricciardi incorporated elsewhere.”

Paul Weiss The result, stated Ricciardi, is that acts of bribery committed by companies and individuals, such as those described above, may be subject to the books and records, internal control, and anti-bribery provisions contained within the FCPA. Actions deemed to be in furtherance of bribe that has a connection in the US may also see companies, both US-based and their worldwide subsidiaries, incur the wrath of the SEC and DOJ.

Not always red, white and blue

There are plenty of instances where investigations into possible FCPA breaches have been initiated against companies in this part of the world, along these lines.

In 2007, Lucent Technologies settled an FCPA enforcement action for US$2.5m, based principally on the conduct of employees based in China.

Recently the reflective division of Avery China — a subsidiary of label maker Avery Denison — settled a claim by the US authorities for a similar sum.

Since it came into force in 1977, no less than eight violations of the FCPA in Greater China have been recorded (among the highest number of any country), not to mention the high number of investigations launched and fines and penalties issued against companies that do business in Asia.

It’s worth noting that the number of enforcement actions being initiated under the FCPA has been steadily increasing year-on-year. In 2003, only six investigations were launched – in 2007 there were 38 fresh investigations initiated. In the first half of 2009, 19 enforcement actions were underway. With the DOJ’s lead prosecutor, Mark Mendolsohn, saying that US regulators are looking to

www.legalbusinessonline.com

increase this number rather than scale it back over the coming months (especially in Asia, a region he deems to be among the worst offenders) the stage is set for many more to come.

Complete compliance

Owing largely to the close relationship between business operations and cultural practices, Jones Day’s Wang notes that there is still reluctance on the part of some China and Asia-based clients to strive for whole-hearted FCPA compliance. He does concede, however, that these attitudes are by no means as common as they used to be.

“There are still a number of local [PRC] managers who we encounter that try to resist our advice by saying that everyone else gives gifts or presents,” Wang said. “This leads to some trying to fit their conduct into the exceptions to the rule, but this is not the correct way to run a business.

There needs to be compliance with the spirit of the law as well as the law itself,” he added.

On the back of the government’s efforts to curb corruption, attitudes are shifting rapidly. This is a trend evidenced by the types of matters practice groups in this area are handling. “Clients are becoming more sophisticated in terms of their FCPA compliance,” said Paul Weiss’s Ricciardi. “They will often come to us in an effort to pro-actively address compliance. [They] will want to work with us in designing policies and procedures, and in some cases will have already identified potential problems through internal and external audits,” he added.

Increased sophistication notwithstanding, some clients still require a fair amount of hand-holding, said Baker & McKenzie’s litigation partner in Hong Kong, Gary Seib.

“Despite improved knowledge about the FCPA in Asia, many clients still come to us with an elementary knowledge of what compliance entails, even where their US-parent company already has compliance programs in place,” he said. Here, lawyers are required to assist clients, according to Seib “from the ground up.”

Jones Day’s Wang highlights the sometimes antiquated business practices of many PRC companies as yet another area where clients need assistance. “There are still some issues regarding how cash is handled in local businesses,” he said. “More established companies have older ways of doing things, for example, expenses being reimbursed using cash. There is no sound way of keeping track of them, and this increases risks, some of which clients aren’t necessarily aware of.”

Awareness of the FCPA risks that are inherent in day-to-day business practices was an area identified by all lawyers ALB interviewed, as perhaps the most important. While some companies have done this by engaging outside training providers to educate staff as to the business implications of improper conduct, lawyers caution companies not to rely on these providers as the sole source of FCPA training.

Instead, a ‘practice what you preach’ approach within companies is needed.

“It’s important to create a culture of FCPA compliance within one’s organisation,” said Paul Weiss’s Ricciardi. “It is not something you can outsource or delegate to an outside provider. Frequent communication from the top of the company about FCPA compliance is vital, as is ensuring that people who act correctly are rewarded and those who do not – whether it attracts the attention of the authorities or not – are punished.” ALB

绝不仅是斥责： 反海外腐败法 合规

亚

洲似乎在以永不枯竭的方式提供天然资源和资 本，这里拥有实力雄厚的企业，相对远离催化 西方国家经济低迷的不良资产，这里被视为耀眼的新 星，与萎靡的西方经济形成强烈反差。但随着投资人 将目光转向亚洲（或重回亚洲，视情况而定），监管 机构的目光也同时转向亚洲，其中以美国的监管机构 最引人注目。作为全球最权威的企业合规法令 — 美 国《反海外腐败法》（FCPA）的监管机构，美国司 法部（DOJ）和证券交易委员会（SEC）已投入大 量资源和人力，扩大对违法企业的调查。亚洲，尤 其是中国，已成为其关注的焦点。

在英国和澳大利亚上市的矿业巨头力拓公司上海 分公司主管胡士泰的案件近期引起业界普遍关注。 于本期《亚洲法律杂志》付印时，胡士泰与其它数 位力拓同事被控向16个中国钢厂行贿，促使这些钢 厂购买力拓的铁矿石，并窃取中国国家机密。出乎 很多人意料的是，胡士泰和力拓此前已受到类似指 控，并受到违反《反海外腐败法》的调查。一家在 英国和澳大利亚上市的企业为何会引起美国监管机 构的关注？答案很简单，因为力拓的存托凭证在纽 约证交所（纽约证交所上市代码：RTP）交易 — 可 以看出《反海外腐败法》的覆盖范围如此宽泛。

15

NEWS | analysis >>

绝非只有美国公司才受制约

宝维斯律师事务所(Paul Weiss)纽约办事处合伙人 Walter Ricciardi 表示：“《反海外腐败法》并非仅适用 于美国公司或公民。该法律适用于所有在美国上市的 公司，或有证券在美国上市的公司，即使在美国以外 成立的公司也同样适用。”Ricciardi 介绍道，如符合上 述条件的公司和个人存在贿赂行为，均将受到账册记 录、内部控制和《反海外腐败法》所含反贿赂条款的 制约。如存在促成与美国相关的贿赂的行为，无论总 部位于美国的公司还是其全球范围内的附属公司，均 将受到证券交易委员会和司法部的调查。 在亚洲地区，已有多家公司因存在可能违反《反 海外腐败法》的行为而接受调查的实例。2007年， 朗讯科技因中国区员工违反《反海外腐败法》被判 支付250万美元罚金，近期，著名标签制造商艾利丹 尼森（Avery Denison）子公司 — 艾利丹尼森中国 公司因违反该法被判支付数额相当的罚金，均是令 人印象深刻的实例。自《反海外腐败法》于1977年 施行以来，在大中华地区已有超过8宗违规案件，在 所有国家中违规数量最高，而在亚洲国家开展业务 的公司受到调查并被判处罚金的数字更高。 值得注意的是，依据《反海外腐败法》强制执行 的裁决逐年稳步增加。2003年，监管机构仅开展6 项调查，2007年，则新开展38项调查。仅今年上半 年，已强制执行19项裁决。司法部首席检控官 Mark Mendolsohn 表示，美国监管机构预计，在未来数 月内，该数字将继续增加，而不会下降（尤其在亚 洲地区，该地区属于违规最为严重的地区之一）， 有更多公司已经被列入调查范围。

完全合规

由于业务经营与文化传统存在密切关系，众达北京 办事处主管合伙人 Peter Wang 指出，仍有部分在

Firm Profile

Blancpain

“瑞

仍然知之甚少。”Seib 认为，在这种情况下，律师 需要帮助客户“从头学起”。 Wang 指出，有些情况下，很多中国公司仍沿用陈旧 的方法开展业务，这是客户需要协助的另一领域。他认 为：“对于中国本地企业而言，如何处理现金仍存在不少 问题。较为成熟的公司仍沿用陈旧的行事方法，例如， 使用现金报销开支，没有追踪现金的有效方法，这样会 增加风险，有些客户对此没有充分的认识。” 《亚洲法律杂志》采访过的所有律师均将充分认 识日常业务活动中的《反海外腐败法》违规风险视 为最重要的因素。为确保合规，有些公司会聘请外 部培训服务提供机构培训员工，讲解不当业务行 为，律师提醒公司注意，切勿将外部培训作为《反 海外腐败法》合规培训的唯一渠道。在公司内推广“ 言行如一”的行事方法确有必要。 Ricciardi 认为：“在公司内部形成《反海外腐败 法》合规的文化氛围十分重要。实现合规无法通过 外包或指定外部服务提供机构的方式实现。在公司 内部定期由上至下探讨《反海外腐败法》合规尤为 重要，这样可确保正确行事的员工得到奖励，对于 违反合规要求的员工，无论其行为是否引起监管机 构的注意，均应受到惩罚。”

“Frequent communication from the top of the company about FCPA is vital, as is ensuring that people who act correctly are rewarded, and those who do not – whether it attracts the attention of authorities or not – are punished” walter ricciardi, new york partner, paul weiss

瑞士宝珀表上海南京西路专卖店周年庆 携中国龙限量版卡罗素腕表登录申城

士宝珀表于1735年诞生,是 瑞士历史上最古老的手表 品牌,也是世界上第一个注 册的钟表品牌，其数百年的 文化及精粹的工艺，使得宝珀在世界表坛拥有 至高无上的地位，极具收藏价值，并深得鉴赏 家和钟表收藏爱好者的喜爱。” BLANCPAIN宝珀坚持每一枚腕表都完全 以精湛纯熟的手工制作,全部均有独立编号,其 制造日期与制表师的姓名都有记录可查,因此 BLANCPAIN宝珀的价值不仅在于手工及所 耗的人力,而是对每一细节一丝不苟的要求,优 雅经典的外型,超然地不受潮流转变的影响,成 为永恒的艺术珍品。 坐落于上海南京西路的BLANCPAIN宝珀旗 舰店拥有150多平方米的宽敞空间，给每一位 尊贵的客人提供了优雅私密的购物环境。作 为中国首家直营的也是最大的专卖店，店堂 内的布置也匠心独具。运用了具有东方色彩 的中国传统青花瓷、笔墨、丝绸等元素妆点 BLANCPAIN宝珀固有的欧式古典风格店堂， 使得东西两种截然不同的文化完美地结合在一 起。您如果在布置得舒适而典雅的VIP休息区

16

中国和亚洲开展业务的客户在竭力确保《反海外腐 败法》合规方面并不积极，不过他承认，按照客户 以往的心态，这种情况并不常见。 Wang 表示：“目前，在我们遇到的中国本地经 理中，仍有部分经理拒绝接受我们的建议，坚持认 为别人都在送礼品或礼物。这种想法导致其入乡随 俗，但这绝不是正确的经营之道，我们必须遵守法 理精神和法律规定。” 但随着中国政府大力惩治腐败，业界的态度正 快速变化，该领域业务团队受理的事务类型可印 证该趋势。 Ricciardi 表示：“在《反海外腐败法》合规方面， 客户的认识正日益提高。客户常要求我们积极解决 合规问题，希望与我们共同设计制度和流程，确保 达到合规要求，有些情况下，客户已经通过内部和 外部审查确定可能的问题。” 贝克•麦坚时律师事务所的 Gary Seib 认为，尽管 客户对合规的认识有所提高，仍有客户需要事务所 予以协助。他表示：“尽管亚洲地区的客户对《反 海外腐败法》的认识有所提高，很多客户对该法案 的合规要求仍是一知半解，而有些客户的美国母公 司已经制定完善的合规计划，即使如此，这些客户

域小歇片刻，我们训练有素的宝珀店员会给您 提供最详尽和最周到的服务。在充满艺术气息 的空间内赏玩BLANCPAIN宝珀给您带来的精 妙时计，岂不是乐事？ 2009年9月，宝珀南京西路专卖店开业一周年 之际，全店不但将有BLANCPAIN宝珀全系列复 杂功能腕表展出，更有全新的中国龙限量版卡罗 素腕表登录旗舰店。继2008年BLANCPAIN宝珀 推出了完全属于自己 的复杂机芯卡罗素， 彻底打破了陀飞轮无 突破的尴尬境遇，揭 开了数十年的卡罗素 争议之谜---卡罗素一 样可以同轴，也可以 做到1分钟转一圈。（ 通常只有陀飞轮才能 做到的）随后不久， 这枚超凡的卡罗素腕 表被故宫作为首枚， 也是唯一枚当代腕表 珍藏。普通款式的卡 罗素腕表盘面运用了

拉斯打磨的机芯夹板材质，而被故宫珍藏的那款 则是阴阳交汇的盘面设计。此次为大家呈现的中 国龙限量版卡罗素腕表同样也沿袭了阴阳的盘面 设计，与故宫珍藏款不同的是，摆陀上的腾龙图 案使用了K金雕刻。43.5毫米红金表壳，Cal.225 自动卡罗素机芯，262枚零件，动力储存100小 时。表背镌有限量版编号，全球限量50只的数 量，您是否也想拥有这份尊贵呢？

ISSUE 6.9

NEWS | news >>

Greater China >>

Herbert Smith gears up PRC arbitration practice H

erbert Smith is gearing up its PRC arbitration practice with new additions to its Chinese offices.

Patrick Zheng, who is fluent in four different languages, will join Herbert Smith’s Beijing office as senior consultant. Prior to joining the firm, Zheng worked at the China International Economic and Trade Arbitration Commission (CIETAC), handling over 200 arbitration cases.

Damien McDonald, a senior associate in Herbert Smith’s Shanghai-based arbitration team, will relocate to Beijing to assist Zheng. Also due to relocate is Justin D’Agostino, who will move from the firm’s London office to join the Asian team in Hong Kong.

D’Agostino has experience acting as a counsel and advocate before arbitration tribunals in several jurisdictions.

He also sits as an arbitrator. Joining Herbert Smith in 1998, D’Agostino was based briefly in the Singapore and

近

Bangkok offices. "These developments are part of a broader picture of investment we have made in our international arbitration practice over the last few years, to service the needs of our clients globally, “ said Paula Hodges, the co-head of Herbert Smith’s international arbitration practice.

“Justin, Patrick and May will add further depth to our China capability, fully integrating our Hong Kong, Shanghai and Beijing teams.”

Further plans are underway to relocate May Tai, a senior associate from the international arbitration group in London, to Shanghai in October. ALB

史密夫积极发展中国仲裁业务

随

着两位高级仲裁专业顾问Patrick Zheng 和Justin D’Agostino的加入，史密夫律师事务所在北 京和香港的仲裁业务团队正在稳步扩大。Zheng 将 会加盟北京团队，同时D’Agostino将被从伦敦调派 到香港。 Zheng 精通于四种语言，他在加盟史密夫之前曾 在中国国际经济贸易仲裁委员会处理过过两百件仲 裁案件，并且在金杜，通商等知名国内律师事务所 以及希文国际律师事务所有过执业经验。Damien Mcdonald，史密夫上海办事处律师，将会被调派到 北京分所协助Patrick Zheng.

D’Agostino于1998年加盟史密夫， 在到伦敦工作 之前，他曾在史密夫的曼谷和新加坡分所担任仲裁 领域的顾问。史密夫国际仲裁资深律师May Tai也将 于下月从伦敦迁至往上海。

对中国企业如何避免违反《反海外贿赂法》 的建议

年来，美国加强了《反海外贿赂法》 (Foreign Corrupt Practices Act) (“FCPA”) 执法行动的力度。同时，在美国的推动 下，多个国家和多边组织签订和颁布了旨 在消除腐败和贿赂的条约和立法，反海外贿赂日益成为 一种国际共识，国家之间在反腐败和贿赂（包括反海外 贿赂方面）的合作也日益增多并变得更为广泛。 基于上述趋势，FCPA对中国国有企业的影响也日益 明显。如果FCPA执法案件牵涉到中国国有企业，被公 布或报道出来后，中国主管机关可能会基于该线索而 启动针对中国国有企业或有关人员受贿情况的调查或 追究相应责任的程序，美国则可能会给中国执法部门 提供中国企业收受证据。总体而言，美国及世界各国 关于FCPA或类似反海外贿赂的执法力度越大，中国国 有企业被牵涉的概率和频率都可能成正比增长。 近年来，实践中，确实也有很多中国国有企业及有 职员卷入了美国的FCPA案件中。这些事件被媒体曝 光后，使其他国家对中国的商业环境留下了不好的印 象，并影响了中国国有企业的声誉和形象。在中国和 世界联系越来越紧密的今天，中国国有企业非常有必 要对FCPA给予关注，充分了解FCPA的规定，加大力 度规范企业内部人员尤其是重要业务人员的行为。 一部分在美国发行证券或需向美国SEC定期提交报 告的中国企业，作为FCPA所指的发行人，其运营一般 相对比较规范，往往会聘请美国的专业顾问提供专业服 务，完善企业内控、员工培训等制度以有效遵守美国的 包括FCPA在内的法律法规。因此，作为FCPA规定的 发行人的中国企业违反FCPA的可能性相对较小。 对非发行人的中国企业而言，往往对FCPA了解 甚少，不太清楚FCPA的适用范围及具体规定，违反

www.legalbusinessonline.com

FCPA的规定的可能性相对较大。这些中国企业，可 从两个方面来关注FCPA：第一，避免做出涉嫌违反 FCPA反贿赂条款的行贿行为；第二，避免接受涉嫌 违反FCPA反贿赂条款的贿赂。 一 避免做出涉嫌违反FCPA反贿赂条款的行贿行为 FCPA将外国公司或个人在美国境内做出的贿赂海外 官员的行为也纳入了规制范畴，因此，中国企业不要 在美国境内做出可能违反FCPA反贿赂条款的行为， 如通过其在美国的营业部做出向某一海外官员行贿的 决定，或者使用美国的电话、网络、邮件行贿。 二 避免接受涉嫌违反FCPA 的贿赂 基于FCPA的有关规定和FCPA在有关行政程序和司法 程序中的适用情况，建议企业在公司的合规政策或企 业员工行为指南等制度中设立以下行为准则： 1、尽量避免接受现金； 2、不要接受红包或其他非透明的、无会计记录的 财务安排； 3、接受礼物时，企业/企业雇员应注意： • 不接受奢侈的礼物，礼物的价值不要超过250美元； • 接受礼物的人仅限于具有商务身份的职员，不包 含其家属或嘉宾; • 不要经常性地接受礼品; • 礼品应该是合法的，符合公认的行业规范和法律 法规，并与提供礼品一方的一贯政策相符。 • 礼品最好是公务用品，而非私人用品 • 接受的礼品最好是能展示对方的产品或包含对方 公司商标的礼品 4、接受商务招待时，企业/企业雇员应注意：

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Guantao

• 商务招待应符合公认的行业规范、法律法规，并 与提供招待一方的一贯政策相符； • 接受商务招待的人仅限于具有商务身份的职员， 不包含其家属或嘉宾; • 在公务出差期间接受招待，而不是私下接受招待； • 商务招待内容必须合理； • 商务招待的规格不要奢华。 5、参加商务旅行时，企业/企业雇员应注意： • 商务旅行必须与“促销、展示或解释产品和服务”直 接相关, 尽量不参与该商务目的之外的其他旅行; • 避免根据对方的指定，安排商务旅行的参与人员； • 勿带配偶或家属随同旅行; • 遵守法律法规和企业政策; • 当接受安排进行商务旅游，要么自行承担有关费 用，要么由有关公司直接安排支付，而不是自行 付费后找有关公司补偿；对于确实需要对方公司 报销的，须提供发票，并且，金额应该控制在合 理的范围内； • 搭乘飞机不要坐商务舱或头等舱； 将以上准则并入公司的合规政策或员工行为手册等 制度中是防止FCPA影响的第一步，但这仅仅是第一 步，企业同时应对员工（尤其是业务第一线的高级员 工）积极展开相关培训，让企业员 工理解FCPA有关规定、了解行为 准则的重要性，使行为准则深入 员工之心。 洪宇昊，合伙人，观韬律师事务所 电子邮件： henryhong@guantao.com 电话： 010-66578066 传真： 010-66578016

17

NEWS | news >>

news in brief >>

Shanghai >>

Baker & McKenzie profits down This year’s profit figures were affected by currency exchange rates and a financial year with longer exposure to the economic crisis. “Our 2009 fiscal year coincided with the most severe months in the current global economic downturn – a challenging time for our clients and for our firm,” said Baker’s chairman, John Conroy. The firm recently undertook some major cost-cutting measures, including an 11% reduction of its fee earners in Greater China.

Financial results

FY09 US$

FY08 US$

% move

global revenue

2.11bn

2.19bn

-3%

global PEP

992,000m

1,100,000

-17%

profit contribution from Asia offices

26%

26%

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贝克•麦坚时全球业务收入下滑

贝克•麦坚时近日发布的08/09财年全球业务收入统计 报告表明，该所业务总收入较上一财年下降３％，同 时合伙人平均业务收入下降１７％。该所２００８年 ７月－２００９年６月财年全球业务总收入为２１． １亿美元，合伙人平均业务收入 为９９万美元。其亚洲业务收入 占全球总收入的26%。0７／０ ８财年，贝克•麦坚时合伙人平 均业务收入达１亿美元，同时总 收入为２２亿美元，为该所收入 最高的一年。 该所执行委员会主席John Conroy称，汇率变动以及全球金 融危机的影响为业务收入下滑的 John Conroy Baker & McKenzie 主要原因。该所此前已宣布一系 列削减开支的措施，包括在大中 华区裁员11%的律师。

Minter Ellison eyes Beijing presence Australian firm Minter Ellison is investigating the possibility of opening a Beijing office, chief executive partner John Weber has revealed. “Beijing is a priority for us, and we’re currently looking at opening a small office there that will help us grow workflows from that market,” said Weber.

The firm now has offices in Hong Kong and Shanghai. Beyond Beijing, Weber said that Minters was cautious about opening further offices offshore, and that the preferred method was to service new markets by flying in teams or by utilising longstanding relationships with intermediaries and other law firms.

The firm said it would be premature to discuss the Beijing move further while plans were still underway.

铭德计划设立北京代表处

澳大利亚铭德律师事务所首席执行合伙人John Weber 近日向ALB透露, 该所正在为开设北京办事处进行前期 考察准备工作。该所已在香港和上海设有代表处。 “ 北京将是铭德发展业务的重要阵地，我们目前正考虑 在北京设立代表处，这将帮助我们获得更多北京市场 的业务。” 除北京外, Weber表示，该所对于进一步在海外设立 分支机构保持“谨慎”。在海外市场发展业务的首选方法 是派遣其团队到国外工作或与长期合作的中介机构和其 他律所共同协作。铭德称，由于北京代表处成立的计划 仍在酝酿中，因此并不方便过多讨论。

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Kirkland & Ellis takes on I

nternational firms operating in China will need to gear up as the competition gets fiercer. Kirkland & Ellis has taken its first step onto the mainland by opening the firm’s tenth office, in Shanghai.

The firm employs around 1,500 lawyers in offices across Hong Kong, Chicago, London, Los Angeles, Munich, New York, Palo Alto, San Francisco and Washington DC. It has a focus on private equity, corporate and tax, litigation and dispute resolution/ arbitration, restructuring, and IP. The new office will be led by senior corporate PE partner Li Xiaoyang and M&A partner Li Chuan, and will represent international private equity firms and Chinese entities abroad.

“Cross-border transactions involving China are inherently complex. Getting a deal done often requires experienced M&A lawyers in both mainland China and Hong Kong,” said Li Chuan.

This is Kirkland’s second office opening in Asia. The Hong Kong branch, which opened three years ago, focuses on transactional business for PE funds and serial strategic acquirers. This office has represented numerous PE firms, including China Investment Corporation (CIC) and Bain Capital, in its landmark investment in the largest Chinese retail enterprise GOME Electrical Appliances.

“The Shanghai office is a direct response to our clients’ growing activity in China, and we also see opportunities to serve rapidly globalising companies,” said Thomas Yannucci, chairman of Kirkland’s worldwide management committee.

Li Xiaoyang joined Kirkland last year from Jun He’s Beijing office.

Experienced in M&A deals involving PE funds and companies in China, he was the managing partner of the corporate practice group and a member of the management committee of King & Wood, before his role at Jun He. Li Chuan joined Kirkland’s Chicago office in 2001, where he focused on leveraged buyouts and other complex deals for large and mid-market private equity funds. Relocating to Hong

Kong in 2007, he was involved in complex transactions by United States companies such as General Motors and Kellogg Company. ALB

凯易进驻上海 总

部位于美国的凯易国际律师事务所近日在 上海成立其第十个办事处，标志该所正式 进驻中国大陆市场。 上海代表处将由私募股权投资和并购业务高级 合伙人李晓阳和李川担任负责人。李川律师表 示：“与中国相关的跨境交易存在固有的复杂性。 要想成功完成交易，常需要在大陆和香港有丰富 经验的并购律师共同协作。” 凯易的分支机构遍布香港、芝加哥、伦敦、洛 杉矶、慕尼黑、纽约、帕罗奥多、旧金山和华盛 顿特区，聘请约1,500位律师。事务所的业务重 ISSUE 6.9

NEWS | news >>

mainland

uk report Addleshaws consultancy branches out Addleshaw Goddard recently launched its management consultancy in a move to offer strategic advice in a consolidating market. The consultancy will operate as a new practice group within the firm, instead of a stand-alone business.

Members of the firm’s professional practices and LLP will join the consultancy, led by the chairman, Mark Jones. The practice will aim to cater to professional businesses (including law firms) that are considering mergers, equity restructurings or new strategic directions.

Clifford Chance restructures As part of the firm’s global reorganisation, Clifford Chance is following in the footsteps of the banking industry, having recently initiated a strategy to market its business to clients on a sector basis.

The bank industry model to be used includes 13 industry-focused groups that sit across practice areas, allowing partners to select sectors to specialise in while remaining in their current practice groups.

Sectors to be serviced include financial services, retail, aviation, automotive and oil & gas. Partners will meet regularly to help develop business in that area.

Taylor Wessing welcomes change A five-partner committee from Taylor Wessing will

点包括私募股权、公司事务的税务、诉讼和纠纷 解决/仲裁、重组和知识产权领域。 上海办公室是凯易在亚洲地区成立的第二家办 事处。其香港办事处成立于三年前，以私募股权 基金和系列战略收购方的交易业务为重点。凯易 香港团队曾担任多家私募股权公司的法律代表， 包括作为中投和贝恩资本的法律代表，曾协助贝 恩资本投资中国规模最大的零售企业国美电器。 凯易事务所管理委员会主席 Thomas Yannucci 表 示：“在客户的中国业务不断增长的直接推动下，我 们成立上海办事处，我们还希望把握全新业务机 会，为快速全球化的中国企业提供顾问服务。” 李晓阳律师去年离开君合律师事务所加入凯易。 他在中国市场涉及私募股权基金和公司的并购交易 领域经验丰富。加入君合前，他曾担任金杜公司业 务部主管合伙人，还曾是金杜管理委员会成员。 李川律师于2001年加入凯易芝加哥办事处，业 务重点包括杠杆收购和其它复杂交易，为大型和 中型股权私募基金提供服务。李于2007年调至香 港办事处，参与复杂交易项目的顾问工作，为通 用和 Kellogg 等美国公司提供服务。 www.legalbusinessonline.com

examine the option of external investment, made possible by regulatory changes to the Alternative Business Structures rules in the UK’s Legal Services Act, due to come into operation in 2011.

As one of the few large firms openly receptive to outside investment, the group will look at other opportunities that could arise from evolving legal markets, including alternative fee structures, procurement and efficiency measures.

The ‘change group’ has been set up by new managing partner Tim Eyles, and also includes financial institutions head Tim Stocks, finance partner Peter Shepherd, intellectual property and contentious partner Niri Shanmuganathan, and real estate partner Adam Marks.

Freshfields has new global corporate head London corporate partner Ed Braham recently took over from incumbent Andreas Fabritius, as global practice group leader for the corporate group at Freshfields Bruckhaus Deringer. He has been appointed for a three-year term.

Braham is a private equity specialist who also co-heads the firm’s global infrastructure and transport sector group. He was chosen over Germany, Central and Eastern Europe corporate chief Marius Berenbrok, and London corporate head Mark Rawlinson, for the role.

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ROUNDUP • Clifford Chance announced 17 partner promotions worldwide, 50% less than 2008’s 35 appointments. The majority of promotions occurred in the firm’s overseas offices, with just three London associates elevated • Taylor Wessing appointed 17 lawyers to partnership, with the bulk of promotions taking place in France and Germany offices – three each in Paris, Munich and the UK, and four in Hamburg • The London barristers’ chambers One Essex Court will have the highest-paid pupils at the bar, following a boost for the October 2010 intake to £60,000. This is up 33% on the £45,000 this year’s intake will receive • Lovells has set up in Saudi Arabia in a bid to expand its Middle East presence past Dubai, with Dubai-based counsel Imran Mufti and associate Mustafa Kamal now working on the launch • Squire Sanders & Dempsey recently boosted its German practice by securing a three-lawyer team from Faegre & Benson LLP in Frankfurt, including corporate partner Karl Walter, banking partner Manfred Baumbach, and special counsel Louis Wakatsuki • Withers followed in the footsteps of top firms Freshfields Bruckhaus Deringer, Slaughter and May and Herbert Smith, announcing a tie-up with BPP Law School. The city firm will send its trainees to the school to study the Graduate Diploma in Law and the Legal Practice Course (LPC) • Spanish firm Garrigues recently voted in new co-managing partners Fernando Vives and Ricardo Gomez, who will take charge from 1 September 2009. They replace co-managing partners Miguel Gordillo and Jose Maria Alonso, who have held the position since 2000

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NEWS | news >>

news in brief >> stake raisings in Cathay Pacific facilitated The recent flurry of activity in Greater China’s aviation industry is keeping law firms busy. Freshfields Bruckhaus Deringer and Slaughter and May, for example, have been involved in complex deals between CITIC Pacific, Cathay Pacific, Swire Pacific and Air China. CITIC was represented by its in-house counsel in its transactions.

Swire Pacific, the controlling shareholder of Cathay, has acquired additional shares in Cathay from CITIC, which will increase their stake to almost 42% on completion. Slaughter and May’s Hong Kong-based partner, Lisa Chung, has advised Swire in its HK$1,013m acquisition. At the same time, in CITIC’s mass disposal of interest in Cathay, the company entered into another agreement for Air China to purchase Cathay shares for HK$6,335m. Freshfields was the legal advisor for Air China on this acquisition of an additional 12.5% stake, raising Air China’s stake in Cathay to 29.99%.

Kay-Ian Ng, Freshfields’ Hong Kong corporate partner who led the team, commented that it’s a significant deal for Air China, as it will 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. Ng was assisted by associates Ethan Zhao Jin and Sharon Chen, with partners Alan Ryan and Michael Han providing the competition law advice.

富而德和司力达参与国泰航空股权交易

中国国际航空公司近日宣布将斥资约8.1亿美元，从中信 泰富有限公司收购国泰航空公司12.5%的股份。通过该 交易，国航在国泰航空的持股比例将上升至接近30%。 国航聘用富而德律师事务所为其法律顾问。 富而德香港合伙人吴基恩是这项交易的领头律师。吴 基恩表示次项交易不仅将拉近亚洲两家领先的航空公司 的关系，也会加强北京和香港作为亚洲地区航空枢纽的 重要位置。该所合伙人 Alan Ryan 和韩亮为此次交易提 供竞争法以及反垄断法相关法律服务。 同时，司力达律师事务所担任太古股份有限公司的 法律顾问，也从中信泰富收购国泰航空价值约港币10 亿的股份。司力达律师团队由香港合伙人，Lisa Chung 担任领头。

Aussie firms making a splash in Asia The Sydney office of Baker & McKenzie heads a list of four Australian law firms feted for their expertise in ADR, according to a survey of in-house lawyers conducted by ALB. Anthony Whelan, head of the firm’s Australian and Singapore Anthony Whelan Baker & McKenzie construction practices, has led numerous multi-jurisdictional disputes across Asia. “Our strategy has been to provide our regional and global clients who have involvement in [these] disputes with the services of our specialist regional litigators, supported by local lawyers in our offices in individual jurisdictions.”

In-house lawyers in China, Hong Kong, Vietnam, Taiwan, Thailand and Singapore all cited Bakers as a leading firm for ADR work. Mallesons was noted for excellence in Hong Kong, AAR in Vietnam, and DLA Piper for Singapore.

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Shanghai >>

Arrested employees find legal representation F

our Rio Tinto employees who stand accused by the Chinese government of bribery and industrial espionage have been granted legal representation. All four have chosen renowned PRC lawyers, and while they will each have individual lawyers, the four will all be tried collectively.

Australian citizen Stern Hu, the general manager of the Rio Tinto sales team in Shanghai, is represented by Charles Duan, the managing partner of Shanghai-based Duan & Duan.

Three Chinese nationals, Liu Caikui, Ge Minqiang and Wang Yong, have engaged legal representation through Shanghai-based criminal law firms.

Liu, who was the manager of the Rio sales team, will be represented by Tao Wuping from Shenda Partners, who acted for Shanghai property tycoon Zhou Zhengyi in the stock manipulation case in 2003. Criminal defence lawyer Zhai Jian, who founded

“There is no reason for me not to accept this case. It’s like operating a hospital, you can’t turn away patients” Zhang Peihong, Zhai Jian Zhai Jian law firm and gained national fame for defending a Beijing resident who killed six police officers in July 2008, will defend Ge, also an employee of Rio Tinto.

Zhang Peihong, also from Zhai Jian, will act for Wang, another employee of Rio Tinto. “There is no reason for me to not accept this case. It’s like operating a hospital, you can’t turn away patients,” said Zhang. “[It] has been receiving an overload of media attention, but I am not pressured and will try it just as any other litigation case,” he added. ALB

上海知名律师为力拓案嫌犯辩护

今

年7月5日，力拓上海办事处首席代表澳籍 华人胡士泰和力拓公司的其他三名雇员刘 才魁、葛民强、王勇被上海市国家安全局刑事拘 留。37天后被检察机关正式批捕。力拓泄密案已 经也已经降格为泄露商业秘密案件。 近日，涉嫌力拓案的四名雇员已委托上海业内 著名律师为其辩护。尽管这四名雇员各自聘请不 同的律师，他们将同时受审。胡士泰是澳大利亚 公民，曾担任力拓上海分公司销售团队总经理， 他聘请上海段和段律师事务所主管合伙人段祺华 担任法律代表。 刘才魁曾担任力拓销售团队经 理，聘请申达律师事务所的陶武平律师担任法律 代表，陶武平曾作为上海房地产大亨周正毅的法 律代表参与2003年操纵股价案的审理。著名刑 事辩护律师翟建是翟建律师事务所创始人，去年

7月曾担任杨佳袭警案的辩护律师，闻名全国， 他将担任葛民强的辩护律师。来自翟建律师事务 所的张培鸿律师将为力拓雇员王勇辩护。翟建表 示：“我没有任何理由拒绝接手此案，这就好像 经营医院，总不能将患者拒之门外吧。此案引起 媒体的高度关注，但我并未因此背负过多压力， 我将一如既往地开展辩护工作。” 四位律师已经 提交面见委托人的请求。根据中国法律规定，在 现阶段调查完成之前，被告无权与律师接触。翟 建补充道：“现阶段，所有律师还都不了解此案的 详情，我无法透露更多情况。” 力拓员工被捕事件 令一些在中国开展业务的西方公司提高了警觉度。 诸多公司开始寻求法律意见，了解如何防止类似指 控出现。通过此案，业界可进一步把握中国市场可 接受的商业行为的界限以及违规成本。 ISSUE 6.9

NEWS | news >>

ShenZhen >>

Shenzhen’s second board appoints six member lawyers

T

he China Securities Regulatory Commission (CSRC) has announced the names of the 35 members on its newly formed issuance examination committee for Shenzhen’s Growth Enterprise Board.

The six lawyers Xu Shouchun appointed include King V&T & Wood partner Wang Jianping, Jun He partner Shi Tiejun, Jiangsu C&T partner Zhu Zengjin, Llinks partner Chen Zhen, V&T partner Xu Shouchun, and Guangdong Shujin partner Ma Yunyan.

They were selected from 18 shortlisted candidates, all of whom were seasoned practitioners in capital markets and securities. The six new members will be responsible for reviewing and approving IPO applications for the new board.

According to the Shenzhen Daily, CSRC had received 108 applications for the Growth Enterprise Board positions by the end of July.

The establishment of the committee means that the launch of the board is getting very close. ALB

首届创业板发审委 成立，六位律师被聘 为委员

中

国证券监督管理委员会近日宣布新成立的 深市创业板发行审核委员会35位成员名 单。在这35位成员中，有六位律师从18位候选 人中经过层层筛选而被聘用。他们分别为金杜合 伙人王建平、君合合伙人石铁军、世纪同仁律师 事务所合伙人朱增进、上海通力律师事务所合伙 人陈臻、万商天勤律师事务所合伙人徐寿春、广 东信达律师事务所合伙人麻云燕。他们均在资本 市场和证券法律领域拥有丰富经验且卓有建树。 他们所在的律所亦均是在全国证券业务领域处于 领先地位的律所。 据《深圳日报》报道，截至7月底，中国证监 会已经收到108份创业板上市申请。发行审核委 员会的成立表明，创业板启动指日可待。

www.legalbusinessonline.com

us report Freshfields names new managing partner Freshfields Bruckhaus Deringer recently named New York-based corporate partner Julian Pritchard as the firm’s next regional managing partner. He will replace structured finance partner Brian Rance, who has been in the role for three years.

Feder to take the lead at Paul Hastings Global real estate head partner, Phil Feder, recently replaced Mark Eagan as head of the London office at Paul Hastings Janofsky & Walker. The London and European network is a core focus for the firm.

Feder recently moved to London from the Los Angeles office to bolster Paul Hasting’s senior management in the city.

Bingham acquires McKee Nelson Bingham McCutchen recently completed its acquisition of McKee Nelson, adding approximately 120 lawyers to Bingham’s Washington, D.C. and New York offices. This takes the number of lawyers worldwide at the combined firm to over 1,100.

The merger with McKee Nelson allows Bingham McCutchen access to McKee’s three core practice areas: tax matters, corporate/finance and business litigation. The acquisition of the smaller practice is the latest in a series of takeovers by the firm following the appointment of Jay Zimmerman as chairman in 1994.

Bingham’s last big acquisition was Swidler Berlin in 2006, which was a merger adding 170 lawyers to the firm’s Washington office.

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ROUNDUP • Canadian firm Blake Cassels is expanding its Middle East reach. The firm recently agreed to a formal alliance with local Saudi Arabian legal practice Saudi Al-Amari in Al-Khobar, and will also launch an office in Bahrain. Led by Dan Fournier, a partner in the firm’s energy and finance practice, the practice will focus on energy, infrastructure, corporate, banking and technology law. Both offices will open their doors in autumn this year • Arnold & Porter recently poached Shearman & Sterling’s Brussels managing partner, Annette Schild and fellow partner Silvio Cappellari, leaving Shearman without a single full-time partner operating in the Belgian capital • Norton Rose is on the hunt for a US merger partner, following its June tie-up with Australian firm Deacons. The firm has long sought a presence in the United States. It has now widened its search beyond the confines of New York and is reportedly compiling a list of approximately 20 firms for potential merger targets • Dechert recently bolstered its New York office numbers with the hire of two new partners from Clifford Chance’s office in the city. Finance partners Stuart Strauss and Richard Horowitz will join Dechert’s financial services group • Cleary Gottlieb Steen & Hamilton has landed a lead role on the billion-dollar takeover of Guaranty Financial Group, a Texas-based bank currently verging on the edge of bankruptcy. Cleary will advise financial services company BBVA Compass on the acquisition • Geoffrey White, senior partner of the global asset finance practice at Clifford Chance, will shortly relocate from the firm’s London office to New York. This will further strengthen CC’s booming asset finance practice in the States.

CORRECTION In the news section of ALB China 6.8 on p24, Beijing intellectual property firm LexField’s name was misspelt as Lexfield. The story tagline was Singapore, not China, and patent attorney partner Guo Jincheng’s name was misprinted as Jiang Chengguo. ALB regrets these errors.

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NEWS | news >>

Update >>

Beijing >>

Regulatory

Dacheng offers patent

Door Opened to Foreign Investments in PE Fund Management in Pudong

D

O

n 10 June 2009, the Pudong New Area Government of Shanghai issued Trial Measures on the Establishment of Foreign-Invested Private Equity Management Enterprises (the “Trial Measures”).

Following a series of policies formulated by the municipal government since 2008 encouraging private equity developments in Shanghai, for the first time, foreign direct investments in private equity management companies (“PE Mgmt Cos”) in Pudong seems to be permitted.

Though the Trial Measures were only effective for around two months, several PE Mgmt Cos have already been established, with more international private equity funds seeking an opportunity to enter the PRC market. Before the issuance of the Trial Measures, the only available forum for foreign investments in fund management entities was through the establishment of a foreign-invested venture capital management enterprise (“FIVCMIE”), pursuant to the 2003 Administrative Provisions on Foreign-Invested Venture Capital Enterprises (“FIVCIE Rules”).

While establishment of a PE Mgmt Co requires a higher threshold (at least US$2 million in registered capital), it has some advantages over FIVCMIE. First, a FIVCMIE requires three management personnel with at least three years professional experience, but a PE Mgmt Co only requires two personnel with at least two years of experience.

Second, while the funds managed by a FIVCMIE can only be invested into the high-tech area according to the FIVCIE Rules, investments of the funds managed by a PE Mgmt Co are not subject to this restriction. Finally, a PE Mgmt Co can enjoy all the subsidies provided by the Pudong government to the domestic PE fund and fund management entities.

However, the Trial Measures expire on 30 June 2010. We understand they were introduced as a trial run for the regulations to be promulgated by the State Council on the establishment of private equity funds and fund management entities (the “PE Rules”). According to the National Development and Reform Commission, the draft PE Rules have been submitted to the State Council for final review.

Serious questions have been raised by potential foreign investors in the PRC fund management: will the PE Mgmt Cos registered under the Trial Measures survive past June 2010? And how would the PE Mgmt Cos be adapted to the PE Rules which will come into effect in the near future?

Written by Jeanette Chan, partner Sue Yang, China law consultant 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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Jeanette Chan

acheng, the country’s largest law firm by size, is not only expanding its geographical coverage but also tapping into new business such as intellectual property law. Following the appointment of an IP team, headed by high-flying practitioner Tao Xinliang in Shanghai earlier this year, the firm has acquired its qualification to handle patent filings and matters before the State Intellectual Property Office (SIPO).

The qualification also allows Dacheng to advise on mainland patent issues for Taiwan clients. Prior to acquiring the qualification, the firm had established an IP agency in Beijing, which mainly handled trademark and copyright issues.

Dacheng’s patent services team is led by partner Wang Weidong, who previously served as the manager of the legal department in the non-government organisation Patent Protection Association of China (PPAC). “It is increasingly necessary for large full-service law firms to have strong IP practices, including patent agency capability,” said Wang.

“The trend is that firms who have advised many companies on IP strategies and IP litigation cases will want to provide a one-stop shop for its clients by offering filing services.”

In recent months, Grandall Beijing office has also established its IP agency, offering a full range of integrated intellectual property services covering patents, trademarks, copyright and domain names. suzhou >>

Software pirates imprisoned

E

vidently, China is taking a firm stand against the country’s piracy problem. In Suzhou, a district court sent four men to prison and ordered them to pay a CNY1m fine for infringing Microsoft’s copyright. The four men are from China’s largest online software piracy syndicate, Chengdu Gongruan Network Technology, and include founders Hong Lei and Sun Xianzhong.

The court also sentenced the men to imprisonment for up to three-and-a-half years and gave them a collective fine of US$1.6m. This decision is widely regarded as a milestone in China’s efforts to crack down on software piracy. “Criminal IP infringement cases with such severe penalties are uncommon in China,” said King & Wood’s Shanghai-based intellectual property lawyer, Cecilia Lou. “However, in recent years, China has increased its efforts to combat IP violations and has made great progress. This landmark case is an indicator that China is taking a stronger stand to fight piracy.”

Last year, a court in Shenzhen convicted 11 people in a copyright privacy case, for counterfeiting versions of Microsoft software. The men were given sentences ranging between 18 months and six-and-a-half-years.

ISSUE 6.9

NEWS | news >>

agency services Although there are already a large number of established agencies and law firms handling patent issues, much market potential remains, particularly for domestic companies.

“The domestic patent legal market is still in its nascent stage. It is very competitive in the low-end market, but domestic companies are yet to realise that filing one high quality patent application will help them reap much more benefits than having many poorly drafted patent applications,” said Wang. ALB

大成获得专利代理业务资格

作

为全国规模最大的律师事务所，大成在发展其国内外分支机构网络 的同时，也在不断扩展其业务范围。近日，该所获国家知识产权局批 准，取得专利代理业务资格。该所可从事国内专利代理业务，同时可以代理 台湾自然人在大陆申请专利等有关专利事务。负责该所专业代理业务的合伙 人王卫东表示：“从市场需求的角度考虑，跟多大型综合事务所将希望发展“一 站式”的知识产权业务，为客户提供尽可能齐全的服务。” 在加入大成前，他 曾担任国家知识产权局中国专利保护协会法律事务部的主任。 国浩律师集团（北京）事务所在不久前，也通过设立专业的知识产权代理 公司而强化其在知识产权领域为客户提供服务的能力和范围。 虽然市场上已经存在大量专业代理公司和一些颇具规模的专业律师事务 所，但是专利代理市场的新进入者仍然看好市场前景。王表示：“国内专利 法律业务市场尚处于起步阶段，远未达到饱和。虽然目前普通代理市场竞 争较为激烈，但是随着企业和生产主体对专利权利申请和保护意识的不断 增强，更多企业将更注重专利申请的质量而非数量。因此，中高端市场的 发展前景仍然客观。”

Beijing has publicised court verdicts like these to show businesses and government it is serious about extinguishing piracy problems. Undoubtedly, this new penalty will serve as a warning to other software pirates. ALB

严判盗版商成为打击软件网络盗 版的里程碑

苏

州市虎丘区人民法院上月对“番茄花园”涉嫌侵犯著作权一案做出一审判 决。在此案中全面策划并操控“番茄花园”商业运作的孙显忠和番茄花园 工作室负责人洪磊都分别被判处有期徒刑3年半，并处罚金100万元；被告张 天平、梁焯勇分别被判处有期徒刑2年，并处罚金10万元；被告单位成都共软 网络科技有限公司被判处没收违法所得292万余元，并处罚金877万余元。 微软公司表示，本案的判决对Windows 7盗版者是一个“重要的警示”，对 网络盗版会产生“震慑作用”。 诸多知识产权律师称此案为我国第一起打击 大规模网络软件盗版行为的案例，也是中国打击软件网络盗版的一个里程 碑。金杜上海分所知识产权律师Cecilia Lou表示： “近年来，中国在打击侵 权和盗版方面大有进展。这个判决再次表明中国在打击盗版和加强知识产 权保护方面的坚定立场

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arbitration 中国律师国际化与新加坡国际仲裁 Internationalization for the Chinese Lawyers – Arbitrating in Singapore

中

国律师实现国际化的一个新途径就是，在世界各地 开展新加坡国际仲裁。 一般情况下，“新加坡国际仲裁”是指当事人通过书 面形式或者其他电子记录方式约定以新加坡为仲裁地 且合同涉及一个以上国家因素的仲裁，其适用法律是新加坡《国际 仲裁法》。在任何书面或者电子记录中只要约定诸如“在新加坡仲裁” 的意思表示，即构成有效的仲裁协议，一些涉外经济合同中常载有 此类临时仲裁协议。实践中，常见的机构仲裁协议表述是，约定提 交新仲或者依据《新加坡国际仲裁中心仲裁规则》进行仲裁。 以新加坡为仲裁地时，当事人可以约定合同适用任何国家法律、 提名任何国籍、任何专业背景的人士担任仲裁员、委托任何国家的 律师代理出庭、使用任何语言仲裁、在世界任何地方开庭。新加坡 国际仲裁实质上是以新加坡《国际仲裁法》为仲裁准据法、在世界 各地进行的国际仲裁，这符合当事人企望方便、有效、合理地解决 纠纷的仲裁本意。从法律服务业者角度看，包括中国在内的任何 国家的律师、公司法律顾问、各行业专家、职业仲裁员、兼职仲裁 员、以及有意参与仲裁业务的任何人士，均构成新加坡国际仲裁的 组成部分，新加坡国际仲裁业务无疑有着巨大的市场发展空间。特 别是，新加坡对外国仲裁员和律师实行免工作准（签）证，外国仲 裁员的仲裁收入免税，这既保障了仲裁员的个人报酬，又降低了当 事人的仲裁成本。可见，对中外当事人、代理律师、仲裁员及其他 全部仲裁参与人而言，在新加坡进行仲裁更为方便有利。世界上主 要国际仲裁机构纷纷而至，一些精于国际仲裁业务的国际知名律所 也已捷足先登。 中国律师要建立中国品牌的国际律师地位和相应价值，开展新 加坡国际仲裁无疑是突破方向之一，可以实现业务国际化、客户国 际化、收入国际化。在解决涉及中国因素的国际商事海事纠纷中， 中国律师深知纠纷产生的商业文化背景，无疑是参与此类仲裁活动 的最佳合适人选。但是目前一些涉外合同中照搬国内仲裁条款，结 果是自我屏蔽参与国际仲裁的机会，有时千辛万苦得到的裁决（ 包括内地和香港作出的仲裁裁决）还不能得到某些纽约公约国法 院的承认和执行，因为这类成员国并没有把中国列为该国法律承认 的公约国。 新加坡作为《纽约公约》成员国，奉行全面支持国际仲裁政策， 承认所有符合《纽约公约》规定的外国裁决。联合国《国际商事仲 裁示范法》和《纽约公约》均具法律效力，构成新加坡《国际仲裁 法》的一部分。法院至今未发生不承认外国裁决的先例，新加坡裁 决也相应地可在世界各地得到承认和执行。新加坡严格限制司法干 预仲裁，当且仅当符合法律规定的有限情形下，为了方便仲裁程序 的顺利进行，法院方可介入仲裁。这种立法框架和司法政策，保证 了新加坡仲裁制度的透明度、仲裁程序的通用性以及仲裁裁决的确 定性。这也是中外当事人和律师在新加坡开展仲裁的法律保障。因 此，中国律师完全可以利用新加坡国际仲裁的法律框架，建立“涉 外合同约定新加坡仲裁”的共识，为我所用，在 世界各地开展国际律师服务。 *以上个人学术看法，不是法律意见，亦不代 表任何机构观点。

作者：葛黄斌，新加坡国际仲裁中心

By Prof Ge Huangbin, Head of China Desk Singapore International Arbitration Centre 32 Maxwell Road, #02-01, Singapore 069115 Tel: + 65 6221 8833 Fax: +65 6224 1882 Email: gehuangbin@siac.org.sg Website: www.siac.org.sg

Prof Ge Huangbin

23

NEWS | news >>

Update >>

shanghai >>

International Tax

Law firms help transform

Hong Kong used by US tax evaders?

O

A

United States crackdown on wealthy Americans accused of hiding their money overseas to avoid paying taxes at home has spread to Hong Kong.

Court documents in the US detail how Swiss banking giant UBS helped clients set up enterprises in Hong Kong to hide money, the Wall Street Journal reported.

John McCarthy, a UBS client in California, agreed to plead guilty to one count of failing to file an annual report to the US Treasury Department, the financial daily said. A document filed with the plea showed he directed the transfer of more than $1m to a Swiss UBS account, held in the name of a Hong Kong entity named COGS Enterprises Ltd. The case follows that of Jeffrey Chernick, from New York, who pleaded guilty in July to filing a false US tax return. He also used a Hong Kong corporation.

About 50,000 US passport holders live and work in Hong Kong and many own Hong Kong and China based businesses.

Another Hong Kong-based case has also been widely reported, of a now-elderly (in his seventies) US passport holder who received about US$7m in commissions in his UBS account over a 20 year period . He is apparently facing the loss of the total account value to taxation penalties and interest and a three year prison sentence.

Hong Kong has come under fire in the past for not sharing tax information with other jurisdictions.

Amendments to the Hong Kong Inland Revenue Ordinance, which would align it with international standards on exchange of tax information, was submitted to the Hong Kong Legislative Council for consideration last month.

However, most information used by the US Internal Revenue Service (IRS) is obtained through the qualified intermediary (QI) program from the international financial institutions themselves; not through the exchange of information provisions in double tax treaties.

By Debbie Annells, managing director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong

24

beijing >>

Grandall plays lead role G

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 the purposes of anti-money laundering legislation.

ne of the world’s largest waste-to-energy companies, Waste Management, Inc. (WMI), has shelled out US$140m to grab a share in turning China’s waste into energy.

The company will acquire a 40% stake in Shanghai Environment Group (SEG), a leading provider of environmental services, Zhang Yi from Shanghai Chengtou Holding.

King & Wood Milbank, King & Wood and Shanghai Run He were the three legal firms assisting on the transaction.

Head of Milbank’s China practice and Asia corporate practice, Anthony Root, led the firm’s representation of WMI, while King & Wood’s Shanghai-based partner Zhang Yi and lawyer Alan Du served as the acquirer’s PRC counsel. The Run He team was headed by partner Robert Li and acted for SEG. “This transaction is the singlelargest investment in China’s solid waste management to date, and the target company is the leading player in the domestic market,” King & Wood’s Zhang said. “This makes the handling of this deal very different from other M&A transactions.”

The world is watching China speed up its renewable energy development. The country plans to dramatically increase its use of solar and wind power, aiming to generate up to 20% of its energy from renewable sources by 2020. Zhang is positive that the renewable energy sector will continue to grow, inviting more foreign investors into the market.

Milbank’s Root echoes this perspective. “Green and alternative energy investment has been increasing rapidly and will continue to do so.” The firm has been busy advising investment into this sector, recently advising the Japanese

Debbie Annells

randall Legal Group (Beijing) has been engaged by Asian Development Bank (ADB) on a technical assistance project to China Clean Development Mechanism Fund (CCDMF).

It is the first time that ADB has instructed a domestic law firm directly, to provide legal advice and services in its technical assistance Wang Weidong Grandall project. The firm’s team is headed by Beijing managing partner Wang Weidong and consists of partner Jeff Liu, Kong Wei and Lu Qi. Grandall has teamed up with specialists within the finance, fund management, legal, MIS, and training fields, to help CCDMF build up a risk-control system and design financial instruments for its fund. These will be used for improved dealings with climate change in China. ALB ISSUE 6.9

NEWS | news >>

Update >>

waste into power sponsors on the 50MW Datang wind-generating project in the Inner Mongolian Autonomous Region. Milbank also acted for GCL-Poly Energy, a leading integrated green energy enterprise, when it expanded its portfolio in July by acquiring Jiangsu Zhongneng Polysilicon Technology Development for US$3.4bn. ALB

律所协助企业变废为宝 美

国垃圾处理巨头Waste Management近日宣布将从上海市城市建设投 资开发总公司收购上海环境集团40%的股份。此次交易额约达1.4亿 美元。三家律所为此项并购交易提供了法律咨询。 美国美邦律师事务所和金杜分别为收购方的国际和中国法律顾问，美邦 团队由亚洲公司法律业务主管， Anthony Root带领，金杜上海合伙人张 毅为该所牵头合伙人。上海润和律所合伙人李革新带领其团队为上海城投 提供法律服务。 张毅律师表示：“此次交易是迄今为止中国最大的废物管理投资项目， 且目标公司是国内市场领先的企业，这使得在处理交易方面有别于其他 并购交易。” 中国积极推动可再生能源领域发展的努力引起全球关注。中国计划大幅提 高太阳能和风能的使用，目标在2020年前，实现20%的能源来自可再生能 源。张毅对可再生能源领域的发展表示乐观，认为该领域将持续增长，吸引 更多外国投资人进入中国。美邦的律师Root对此表示赞同。“绿色和可再生 能源投资一直快速增长，且将继续保持该态势。” 美邦已围绕该领域的投资项目开展大量工作。该所近期曾为日本企业提 供顾问服务，协助其完成内蒙古自治区的 50MW 大唐风力发电项目。美 邦还曾担任领先的综合绿色能源企业保利協鑫能源的法律顾问，协助该公 司于7月出资34亿美元收购江苏中能硅业科技发展有限公司，扩大保利協 鑫能源的投资组合。

in ADB’s TA project 国浩中标亚洲开发银行 技术援助项目 国

浩律师集团（北京）事务所近日正式与亚洲开发银行签署了咨询服 务协议，为 其资金援助的中国清洁机制发展基金技术援助项目提 供全程法律服务。该所将在本次技术援助项目中担任牵头人工作，除提供 法律服务外，还将协调境内外基金、财务、培训、系统设计等领域的专家 共同开展和完成此技术援助项目。此次亚行项目团队由管理合伙人王卫东 律师负责，还包括陆绮、刘继、孔蔚等合伙人和律师。 此次国浩律师团队成功中标亚行技术援助项目，实现了国内机构在亚行 承接技术援助项目的历史性地突破，成为第一家直接中标承接亚行对中国 的技术援助项目的中国律师事务所。

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Singapore 新交所出台新措施，助凯利板公司过渡

2

007年12月17日，新加坡股票交易自动报价市场(SESDAQ) 正式更名为凯利板(Catalist)。该板参照伦敦AIM市场的模 式，实行由保荐人（sponsor）负责的上市监管制度，从而 标志着亚洲第一个为本地和国际快速成长型公司设立的由 保荐人监督的上市平台诞生。

根据新交所原有规定，在凯利板挂牌上市的公司须在2010年2月 5日前委任保荐人，否则将面临除牌。为推动无保荐人公司顺利过 渡至新制度，新交所一直和保荐人合作，不时推出新措施，包括让 早行动的公司获得优惠、保荐人委任计划，季度进展报告等。考虑 到当前金融危机席卷全球，经济环境持续低迷，新交所特出台下列 两项新措施：

一是提供贷款担保

根据该计划，凯利板公司可一次性获得高达5万新元的贷款，用于 支付委任保荐人费用。新交所对该贷款提供90%的担保，由此，凯 利板公司无需再另外提供任何担保。除未委任保荐人的凯利板公司 外，已委任保荐人的凯利板公司也可申请该计划下的贷款。 丰隆金融（Hong Leong Finance Limited）根据其贷款规定及程序， 负责提供该计划中的所有贷款，贷款总额不得高于500万新元。届 时，贷款将直接支付给贷款人委任的保荐人。

贷款申请应在2009年8月3日至2009年10月30期间提出。经贷款 人公告业已委任保荐人，受委任的保荐人开具账单后，贷款将在贷 款协议签订后60日内一次性全额发放，最迟发放时间不得晚于2009 年12月31日。该计划还款期为两年，年利率6.5%，每月还本付息， 第一次还款应在贷款提供后一个月内支付。

二是延长除牌时间

根据该规定，在2010年2月5日前仍未委任保荐人的凯利板公司可停 牌至2010年12月31日。在停牌期间，凯利板公司及其股东可委任保 荐人，或采取其它措施以维持其上市地位，一旦完成其中一项便可 恢复交易。若截至2010年12月31日仍未委任保 荐人，则该凯利板公司将被除牌。

凯利板新推出时有154家挂牌上市公司，至 今已有44家委任了保荐人，28家转移至主板交 易，6家被除牌。目前，有76家公司尚未委任保 荐人。根据最新进展报告，其中66家表示会在 截止日期前委任保荐人，另有6家表示计划转移 至主板或通过重组计划以维持其上市地位。

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

吳艷娟

盧寶琪 企業融資部资深專員 Ph: (65) 6322-2231 Fax: (65) 6534-0833 E-mail: kittylo@loopartners.com.sg

俊昭法律事務所

88 Amoy Street, Level Three, Singapore 069907

盧寶琪

25

NEWS | M&A >>

mergermarket M&A deals update

26

ISSUE 6.9

Feature | award winners >>

Winner profile

Shanghai Law Firm of the Year: AllBright Law Offices

C

elebrating its ten-year foothold in the legal market this year, AllBright Law Offices is embracing its reputation as one of the China’s leading national firms.

Clinching numerous law awards in an array of categories, the firm proudly boasts its peak standing as top tier firm in FDI, litigation, IP, international trade, corporate and commercial law practice areas.

AllBright is not only recognised as one of the largest private partnership law firms in China, the firm is also known to lead the legal market by the quality of its practices. Emerging as Shanghai Law Firm of the Year in the ALB law awards 2009, AllBright has taken the reign in changing legal landscapes and emerging practices areas.

Ranked within the top 10 largest law firms in China by ALB this year, AllBright now employs over 72 partners and 325 lawyers in four domestic offices.

The firm is headquartered in Shanghai and has offices in Beijing, Hangzhou and Shenzhen.

Since its establishment, AllBright has been unparalleled in depth and its unique ability to respond to the increasingly complex legal needs in both domestic and international marketplaces.

Amongst its vast providence of legal services in all practice areas, AllBright’s core practice is focused in the areas of corporate law and litigation, M&A, FDI, venture capital, international trade, securities, IP, corporate restructuring and dispute resolution.

Despite the GFC proving to be a hard hit for many PRC firms with corporate practices, AllBright has not only successfully weathered the storm, the firm’s revenue increased this year and two other practice groups – corporate restructure and bankruptcy – were established. Both their offices in Pudong and Puxi have expanded in

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size and plans are underway to further strengthen their Beijing presence.

This year, AllBright also joined the Sino-Global Legal Alliance in its aims to be part of the platform of integrated international and domestic legal services in China and to provide practical commercial solutions to its clients’ legal problems.

Leading dispute resolution and M&A practice

As dispute resolution becomes one of China’s most effective channels for disputes settlement. AllBright has since been recognised as one of the leaders in the practice of dispute resolution. The firm has quickly become a force to be reckoned with in complex procedures which include consultation, reconciliation, mediation, compensation and arbitration.

AllBright’s achievements in its dispute resolution practice is evident by its successful representation of the receivers in the dispute between a healthy food producer and beverage producer and the firm’s legal advice to a shipping company on its shipbuilding disputes concerning a total contract value of RMB2bn.

AllBright’s M&A practice has also flourished over the years, the firm acted for a venture company as leading investor for US$20m worth of investments in China’s biggest on-line clothing shopping networks; and an investment company in its US$50m investment in a joint venture real estate development project.

In alignment with the surge of Chinese M&A, AllBright has been assisting many domestic firms in their venture overseas, adding a large contingent of domestic clients to its pedigree of multinational corporations and banks.

Expertise

AllBright prides its success on its team

of professional talents. The firm’s lawyers are trained and licensed to practise in foreign jurisdictions including the U.S., Canada, Europe, Japan and Korea.

“AllBright recruits legal talents with different specialties; this includes lawyers with rich foreign experiences. This ensures that our firm is able to deliver quality services to both international and domestic clients,” said a partner of AllBright’s managing committee.

Strategy

Shanghai has been earmarked by the State Council as China’s next international financial centre and PRC firms are rapidly expanding into the country’s fast-growing regional centres, the pinning question remains - how will AllBright fight this increasing competition? “We are ready to compete,” said the managing committee. AllBright is confident that the firm’s strategy will not only maintain their reputation as a leading national firm, the firm’s intent to expand aggressively will also establish its strong foothold worldwide.

Recently recruiting more talents to join the team, plans are already underway to open several new offices both domestically and internationally.

Seeing ‘international management and integration” as the key to success, AllBright recently devised an advanced management and supervision system which has significantly improved the firm’s team work, product quality and risk control.

“In all that we do to strive for excellence, talents training and quality control systems are the key factors for us to consolidate and increase AllBright’s brand value and market recognition.”

AllBright continues to represent the future of PRC law firms in a marketplace increasingly demanding the highest level of legal services, advice and integrity.

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NEWS | news >>

►► LATERAL HIRES Name

Leaving from

Going to

Practice areas

Location

Jeff Cai

Salans

Jingcheng Tongda & Neal

real estate, finance, M&A

Beijing

Zhang Haixiao

MWE China

Zhong Lun Law Firm

corporate, IP, real estate

Shanghai

Wang Yingzhe

Han Yi

Fen Xun

capital markets

Beijing

Du Wei

Jingtian & Gongcheng

Fen Xun

real estate

Beijing

Luo Rongping

TrueWay

Fen Xun

corporate

Beijing

Hermes Pazzaglini

Allen & Overy

NCTM

corporate

Shanghai

Jun Bautista

ICDR

Baker Botts

arbitration

Hong Kong

Paul Teo

Pinsent Masons

Lovells

construction and infrastructure

Singapore

Name

Firm

Title

Practice

Location

Tom Tobiason

Orrick, Herrington, Sutcliffe

partner

venture capital, emerging companies

Shanghai

►► Relocation

►► 2009 promotions Name

Firm

Title

Practice

Location

Cao Shan

City Development

Partner

construction, real estate

Shanghai

Wang Jinmin

City Development

Partner

construction, real estate

Shanghai

Zhang Zhengjin

City Development

Partner

construction, real estate

Shanghai

Pan Linquan, Zhang Shunyi, Yao Deyong, Zhou Qun, Liu Mingyue, Xing Weihua, Wu Di, Ju Nan

Great Wall Alliance

Partner

various

Shanghai

Sun Hui, Sheng Jun

Zhong Lun Law Firm

Partner

various

Beijing/ Shanghai

Salans

JT & N

Salans real estate head joins JT&N Beijing-headquartered Jincheng Tongda & Neal has made one of its most senior appointments, hiring Jeff Cai as a senior partner in its head office. Prior to joining JT&N, Cai served as a former partner and head of China Real Estate at Salans.

Jeff Cai He specialises in PRC-related real estate transactions, including property development and construction, sales, leasing and management, acquisitions and dispositions, financing and distressed real estate. Cai also offers related tax planning and corporate and debt restructurings advice.

28

With more than twelve years’ practical experience, Cai has also advised many Fortune 500 companies on FDIs, M&A and corporate reorganisation activities in China.

In addition, he has assisted a few PRC-based companies with their offshore listings.

前胜蓝合伙人加盟金诚同达

曾任胜蓝律师事务所的合伙人及中国房地产主管的 蔡文海律师近日加盟金诚同达，并成为高级合伙人。 蔡律师有着超过十二年的法律实务经验。 他就与中国相关的房地产交易的几乎所有方面均 拥有广泛丰富的经验，包括房地产开发和建设、销 售、租赁和管理、收购和处置、房地产融资和处于特 殊境地的不动产，以及税务规划、公司及债务重组的 事宜。在其它律师行执业期间，蔡律师还代表许多财 富500强企业在华从事外商直接投资、兼并收购和公 司重组活动。他还曾协助一些中国公司境外上市融

资。在回归私人执业之前，蔡律师曾担任香港恒基兆 业集团的高级经理（法律和秘书事务），负责恒基中 国的法律事务。

Zhong Lun Law Firm

Zhong Lun adds new partners Following the decision made at its second biannual partnership meeting this year, Zhong Lun Law Firm has elected three new partners. Zhang Xiaohao has been admitted to its second-tier partnership, and Sun Hui and Sheng Jun have become salary Zhang Haixiao partners. Zhang and Sheng are based in Shanghai, while Sun Hui is in Beijing.

Piror to joining the firm, Zhang was a partner at Shanghai firm MWE China. She joined that firm from WongPartership’s Shanghai office in March 2009. Her practice areas cover insolvency, intellectual property, M& A, real estate and renewable energy.

In addition to the promotion, the firm has also initiated its plan to set up a branch office in Hong Kong.

中伦新增三位合伙人

在近期举行的2009年度第二次合伙人会议上，中伦 合伙人一致认为，从今年下半年开始，法律服务市场 有回暖的迹象。因此，该所决定晋升三位律师为合伙 人。上海分所的张海晓律师被任命为二级合伙人，盛 军律师被晋升为授薪合伙人，位于总部的孙慧律师 也被晋升为授薪合伙人。 张海晓此前曾为上海元达律师事务所的合伙人。 今年三月，她从新加坡王律师事务所上海代表处加 入元达。张律师业务领域涵盖破产清算、知识产权、 兼并和收购、房地产以及可再生能源等，拥有13年国 内外律师事务所执业经验。她是美国纽约州律师协 会及中华全国律师协会会员。 该所同时宣布已原则通过于近期在香港设立办公 室的方案。

Silicon Valley

Shanghai

Orrick relocates corporate partner to Shanghai office Orrick, Herrington & Sutcliffe LLP has relocated its corporate partner Tom Tobiason from Silicon Valley to the firm’s Shanghai office, where he will lead Orrick’s US/China and Asia-wide emerging companies practice. Tobiason’s practice Tom Tobiason covers venture capital, M&A and private equity. He represents emerging growth and technology companies, venture capitalists and investment banks in the United States and Asia.

ISSUE 6.9

NEWS | deals updates >>

Equity Capital MarkEtS liSt China, Hong kong aug 19 to Sep 15

issuer

proceeds (uSDm)

issue Date

Currency

bookrunner(s)

Sector

CHiNa Rizhao Port Co Ltd

187.4

8/25/2009

CNY

Essence Securities

Industrials

Shenzhen Salubris Pharma Co

175.2

8/31/2009

CNY

China Merchant Securities

Healthcare

Foshan Saturday Shoes Co Ltd

144.9

8/24/2009

CNY

China Merchant Securities

Retail

Shanghai Luolai Home Textile

139.6

8/31/2009

CNY

Ping An Ins

Consumer Staples

Guangdong Alpha Animation Co

134.2

8/27/2009

CNY

Guangfa Huafu Securities

Industrials

Suzhou Hesheng Special Co Ltd

85.5

8/24/2009

CNY

Ping An Ins

Materials

China Gaoxian Holdings Ltd

69.4

9/9/2009

SGD

UOB Kay Hian Private Collins Stewart

Consumer Staples

Henan Splendor Sci&Tech Co Ltd

56.8

9/11/2009

CNY

Zhong De Securities

High Technology

Shenzhen Success Electronic Co

43

8/20/2009

CNY

Pingan Securities

Telecommunications

Guangdong Chaohua Tech Co Ltd

39

8/20/2009

CNY

Nanjing Securities

Materials

China Sports International Ltd

11.7

9/7/2009

SGD

UOB Kay Hian Private

Consumer Staples

Lihua International Inc

10.4

9/4/2009

USD

Broadband Capital Management Rodman & Renshaw Inc

Materials

HoNg koNg Modern Media Holdings Ltd

16.6

9/8/2009

HKD

Industrial & Comm Bank China

Media and Entertainment

Imagi Intl Hldg Ltd

13.9

8/25/2009

HKD

Guotai Junan Securities

Media and Entertainment

China Yunnan Tin Minerals Grp

11.6

8/24/2009

HKD

Cheong Lee Securities

Materials

Poly Development Holdings Ltd

11.1

8/26/2009

HKD

Chung Nam Securities

Industrials

DEbt Capital MarkEtS traNSaCtioNS China, Hong kong aug 19 to Sep 15

issuer

proceeds (uSDm)

issue Date

Currency

bookrunner(s)

Sector

Finance Street Holding Co Ltd

819.9

8/26/2009

CNY

China International Capital

Real Estate

Nanjing Urban Constr Invest

380.6

8/25/2009

CNY

Galaxy Securities

Consumer Products and Services

Weichai Power Co Ltd

190.3

8/24/2009

CNY

China Merchants Bank

Industrials

Tsinghua Holdings Co Ltd

146.4

8/25/2009

CNY

China Merchants Bank China Everbright Bank

Financials

Xinjiang Guanghui Ind Co Ltd

146.4

8/26/2009

CNY

Haitong Securities

Real Estate

Wuxi Guolian Dvlp (Grp )Co Ltd

146.4

8/28/2009

CNY

China Construction Bank

Financials

Hutchison Whampoa Intl Ltd

2,990.80

9/8/2009

USD

Barclays Capital Deutsche Bank HSBC

Financials

Sun Hung Kai Properties Cap

25.5

9/7/2009

HKD

Standard Chartered Bank

Real Estate

Hong Kong Mortgage Corp Ltd

22.3

9/10/2009

HKD

Standard Chartered Bank

Financials

Hong Kong Mortgage Corp Ltd

12.9

8/24/2009

HKD

Deutsche Bank

Financials

CHiNa

HoNg koNg

www.legalbusinessonline.com

29

NEWS | news >>

His clients include companies in a number of growth industries, including cleantech, Internet, online gaming, digital media, wireless/mobile, semiconductor and life sciences industries.

directors Chen Xuebin and Dong Jianhua, and partner Gao Qi for other Shanghai firms. Great Wall Alliance now employs 37 lawyers, and is headed by managing partner Xu Peihua.

奥睿将硅谷合伙人调派至上海

上海亚太长城合伙人团队大幅调整

美国奥睿律师事务所宣布公司业务合伙人Tom Tobiason已从该所的硅谷办事处加入其上海代表 处，并将带领奥睿中美之间以及亚洲地区的新兴公 司业务。 Tobiason在硅谷办事处工作多年，其业务领域包 括风险资本、并购和私募股权，代理遍及美国和亚 洲的新兴高增长和技术公司、风险投资商和投资银 行，其客户包括许多高增长行业内的公司，包括清洁 能源、互联网、网上游戏、数码媒体、无线电/移动电 话、半导体以及生命科技等行业。

City Development

City Development appoints three to partnership Shanghai City Development (Jianwei) Law Firm, which focuses on real estate and construction sectors, has promoted three lawyers to partnership in its Shanghai head office.

Cao Shan, Zhang Zhengjin and Wang Jinmin are the three newly appointed partners. Cao and Wang began their legal career with Jianwei in 2001 and Zhang joined the firm four years later. The firm has five offices in Shanghai, Beijing, Shengzhen, Suzhou and Kunmin. The firm’s Shanghai headquarters has established five departments covering land, construction engineering, real estate and finance, environmental protection and foreign affairs.

上海建纬提拔三位合伙人

位于上海的专业建筑和房地产律师事务所建纬，近 日提拔了三名合伙人。上海总部的合伙人总数因此 达到15位。三位新合伙人分别是曹珊、汪金敏和张 正勤律师。其中汪金敏律师系造价工程师、建筑经 济与管理学硕士、建筑工程学学士，1999年初起在 上海建纬律师事务所从事建筑房地产专业法律服务 至今；张正勤具有英国皇家特许建造师资格、英国皇 家特许测量师资格。 总部设在上海，建纬在北京，深圳，苏州以及昆明 设有分所。

Great Wall Alliance

Great Wall Alliance promotes eight Shanghai-based Great Wall Alliance’s firm structure has undergone many changes recently.

After converting into a partnership-model firm, Great Wall promoted eight lawyers to its partnership, including Pan Linquan, Zhan Shunyi, Yao Deyong, Liu Mingyue, Zhou Qun, Xing Weihua, Wu Di and Ju Nan. The promotions come after the departure of three senior practitioners, including former

30

在于2008年10月由合作制律所改制为合伙制律所 后，上海市亚太长城律师事务所的合伙人团队经历 了大幅调整。在三位资深合伙人，包括高琦、陈学斌 以及董建华律师于今年相继离职后，该所于近日提 拔8位律师成为新合伙人。 新合伙人分别是潘林荃、张顺意、姚德壅、刘名 越、邢伟华、瞿楠、吴迪、周群等律师。该所目前有 37位执业律师，有主人合伙人徐培华领导。前任主任 合伙人陈学斌几个月前加入国浩上海办公室成为高 级合伙人。

Various

Fen Xun

Partners depart to set up new firm Three partners from three different firms have joined together and established a new firm located in Beijing, named Fen Xun. The managing partner of the new firm is Wang Yingzhe, who was formerly a partner with Han Yi’s Beijing office.

Wang Yingzhe Wang joined Han Yi in April of this year from Jingtian & Gongcheng, where he was a senior partner practising for 12 years. He is a veteran practitioner in capital markets, and focuses his practice on the areas of domestic and overseas securities offerings and listings, restructuring of large and medium-sized SOEs, M&A and reorganisation of listed companies.

The other two founding partners of the new firm are Du Wei from Jingtian & Gongcheng and Luo Rongping from TrueWay.

意大利律所力图拓展中国业务

意大利 NCTM 律师事务所近日聘用前安理律师 Hermes Pazzaglini ，以扩大亚洲业务团队。虽然 NCTM 目前在亚洲尚无分支机构，该事务所希望通 过此次任命能够将业务扩展至中国和东亚市场。该 所中国业务由联合主管合伙人 Vittorio Noseda 亲自 带领。 Pazzaglini 曾在贝克•麦坚时律师事务所和博礼祈 律师事务所任职，将与 Noseda 配合工作，共同主持 业务扩张。高级合伙人 Paolo Montironi 表示：“尽管 经济趋势尚存在不确定性，但中国和其它东亚市场的 客户需求十分旺盛。 此次业务扩张是 NCTM 业务的自然发展，与该所 的总体国际业务扩展策略相合 Montironi说：“我们的 业务目标十分明确：将全球业务网络与高水准本地律 师人才充分结合，发挥事务所的综合优势，为客户提 供更好的服务。”

ICDR

三位合伙人共创新品牌

三位来自不同律师事务所的资深律师，近日共同创立 了一个新的品牌 – 北京市奋迅律师事务所。该所的创 始兼管理合伙人为王英哲律师。王英哲律师此前曾 为竞天公诚的高级合伙人，并在该所执业达12年。王 律师于今年四月作为负责合伙人加盟上海瀚一律师 事务所北京分所，在加盟不到六个月后决定独立创建 新律师事务所。他的主要业务领域包括国内外证券发 行和上市，大中小型国有企业重组，并购以及上市公 司重组。 另外两位创始合伙人分别为前竞天公诚房地产专 业合伙人杜卫律师和前君本律师事务所合伙人罗荣 萍律师。

Allen & Overy

Italian firm NCTM has boosted its Asia team with the appointment of former Allen & Overy associate Hermes Pazzaglini. While the firm currently has no presence in Asia, it is planning to use the appointment to expand to the China and East Asia markets, led by the firm’s co-managing partner and head of its China team, Vittorio Noseda.

Pazzaglini, who has previously held positions at Baker & McKenzie and Barlow Lyde & Gilbert, will work alongside Noseda to head the expansion.

“Despite the uncertain economic climate there is a significant demand from our clients for support in China and other East Asian markets,” said senior partner Paolo Montironi.

“For NCTM, this represents the most natural move in our overall international expansion strategy.

The target remains clearly within our sights: to consolidate a direct, global presence with highlyqualified local expertise, which allows us to assist our clients to the best of our abilities.”

NCTM

Italian firm targets China expansion Following the line taken by US and UK firms who have been increasing their China practices recently,

Baker Botts

Baker Botts boosts arbitration practice in Hong Kong Baker Botts has appointed Jun Bautista, former director of the International Centre for Dispute Resolution’s (ICDR) Asian office, to boost the firm’s regional arbitration network and connections.

Jun Bautista Bautista helped establish the ICDR’s Asian offices in 2007 and, as director, administered international cases and raised the centre’s profile by promoting arbitration in Asian countries. At Baker Botts he will work in the Hong Kong office alongside special counsel Steven Lim, who heads the office’s arbitration and dispute resolution practice. Lim said that Bautista’s connections will help clients in Asian dispute resolution matters.

ISSUE 6.9

NEWS | news >>

“Jun knows how the ICDR works on the inside and has close relationships with other arbitration institutions which will be helpful to us,” said Lim. “He adds another dimension to our practice.”

Lim added that other firms in the region are bolstering their arbitration practices.

“There has been a recent trend for firms to add to their disputes practice or start a new practice in Hong Kong or Singapore, and … we established a presence in Asia in January 2008, slightly ahead of the recent influx,” he said.

“Our strategy is to bring on board people who know Asian arbitration, and Jun’s appointment is part of that strategy.”

贝克•博茨扩大香港仲裁业务团队

贝克•博茨律师事务所(Baker Botts)近期吸引国际纠 纷调解中心（ICDR）亚洲办事处前总监 Jun Bautista 加盟，进一步提升事务所在亚洲地区的仲裁业务网络 和业务关系。 Bautista 于2007年协助国际纠纷调解中心建 立亚洲办事处，并担任总监，曾受理多宗跨国案 件，通过在亚洲地区推广仲裁提升该调解中心的 形象。加入贝克•博茨后，他将在香港办事处与 顾问律师 Steven Lim 配合工作，Steven Lim 现 任香港办事处仲裁和纠纷调解业务主管。Lim 认 为，Bautista 的业务关系有助于亚洲客户处理纠纷

A

调解事宜。Lim 表示：“Jun 深谙国际纠纷调解中心 的运作方式，与其它仲裁机构有密切合作关系，这 将对我们的业务大有裨益。他将促进我们的业务跨 入全新维度。” Lim 补充道，亚洲地区其它事务所亦在积极扩大 仲裁业务。他表示：“近期趋势表明，诸多事务所正 扩大纠纷业务团队，或在香港或新加坡启动全新业 务，我们已于2008年1月进入亚洲市场，略占先机。 吸引熟知亚洲仲裁业务的人才加盟是我们的业务策 略，任命 Jun 正是该策略的组成部分。”

Pinsent Masons

Lovells

Lovells lures Pinsent construction partner to Singapore office Lovells has boosted its Asian construction and infrastructure practice with the appointment of Paul Teo, who joins as a consultant in the Singapore office.

Teo arrives from the Hong Paul Teo Kong office of Pinsent Masons and will advise on precontractual matters, construction and engineering disputes.

He will work alongside Lovells’ Singapore managing partner James Harris, who heads the Asian projects group, as well as the finance team in south-east Asia.

“Paul’s practice is primarily in post contract work so he will be helping people on contracts and dispute resolution matters,” said Timothy Hill, head of the firm’s Asian engineering & construction projects group. “We’ve certainly seen an upturn in that area and growing strength in the regional infrastructure market.”

路伟吸引品诚梅森建筑业务合伙人加盟

路伟律师事务所积极拓展亚洲建筑和基础设施业 务，成功吸引Paul Teo 加入，赴新加坡办事处担任 顾问律师。 此前，Teo 曾在品诚梅森律师事务所香港办事处 任职，加入路伟后，将负责为合约签署前事宜、建筑 和工程纠纷事务提供顾问服务。他将与路伟新加坡 办事处主管合伙人 James Harris 配合工作，James Harris 现任路伟亚洲项目组主管，同时主管东南亚金 融业务团队。 路伟亚洲工程与建筑项目组主管 Timothy Hill 表 示：“Paul 擅长处理合约签署后的事务，将协助客户 处理合约和纠纷调解事宜。该业务领域已出现明显 好转，我们将着力提升在亚洲地区基础设施市场的业 务实力。”

Prior Art Defence in the Amended Patent Law

rticle 62 of the amended Patent Law, taking effect on 1 October 2009, provides: In a patent infringement dispute, where the accused infringer has evidence to prove that the technology or design it has exploited is prior art, it does not infringe the involved patent.

This provision will allow accused infringers to defend malicious litigations on patent applications for known technology; thereby preventing patent disputes which hinder the technology’s exploitation. In Chinese patent law, patent infringement litigation and patent invalidation are separate procedures. The court has no power to decide a patent’s validity.

Prior to the amendment, even if an accused infringer had evidence proving the technology or design was prior art, it could not use that as defence. Only if an accused infringer obtained a favourable invalidation decision could it cite this in the patent infringement litigation. www.legalbusinessonline.com www.legalbusinessonline.com

However, the invalidation procedure and the subsequent first and second instance trials would be so protracted that, even if it won the case, the accused infringer would suffer great losses in time, money, market share and damage to its reputation.

The provision of the prior art defence aims to solve this. The question remains, how should this provision be applied? It is generally believed that the accused infringer may claim it uses a technical solution “identical” to prior art, and therefore does not infringe the patent.

However, opinions vary as to whether the prior art defence is available to technical solutions “equivalent” to prior art.

The Supreme People’s Court recently promulgated the Interpretation on Issues Regarding the Application of Law in Patent Infringement Cases (Draft for Comments), wherein Article 17 provides: Where the accused infringer of an invention or utility model patent proves that all of the technical features accused of falling into the

Firm Profile

Lifang

protection scope of the involved patent are identical or equivalent to the corresponding technical features of an existing technical solution, the court shall decide that “the accused infringer has evidence to prove that the technology it has exploited is an existing technology” as provided in Article 62 of the Patent Law. It also provides that the court may refer to Article 62 where the accused infringer claims it has not infringed because the involved patent application conflicts with a published patent. If this interpretation is adopted, the prior art defence will enjoy wide application and have a significant impact on future patent infringement litigation.

Guanbin Xie, managing partner Email: guanbinxie@lifanglaw.com Tel: 86-10-64096099 Fax: 86-10-64096260 / 64096261

Guanbin Xie

31

FEATURE | ALB Hot 25 >>

THE STATESMEN Name

Firm

Lv Hongbing 吕红兵

Grandall Legal Group 国浩

Wang Ling 王玲

King & Wood 金杜

Wang Zhongde 王忠德

Dacheng 大成

Zhang Xuebing 张学兵

Zhong Lun 中伦

Zili Shao

Linklaters

THE STRATEGISTS Name

Firm

Bernd Stucken

Salans

Cui Liguo 崔利国

Guantao 观韬

Matthew Laight

Bird & Bird

Robert Lee

Diaz Reus

Wang Li 王丽

DeHeng德恒

THE EXPERTS

Over the past year, a host of legal practitioners have performed outstandingly in their field, or courted controversy and turned heads in the legal arena. Here is ALB China’s pick of the best

T

he past 12 months have turned out to be one of the most colourful and interesting times in the history of the legal industry. For the first time, the industry was affected by the global economic and financial turmoil, and once over-stretched firms were given the opportunity to slow down and rethink their business strategies.

China’s economic resilience and strength has been tested and proven, however, while some of the nation’s leading law firms have expanded their global market reach by simply following in their clients’ footsteps.

New laws and regulations came into effect, yet the past year has served as a pilot for practitioners, regulators and courts, who are handling emerging – and important – issues relating to new laws in antitrust, employment and bankruptcy work. As the enforcement

32

of these new laws advances, several lawyers have become pioneers and experts in certain fields. Those lawyers, who are involved either in landmark events, achieving outstanding success in business, or are making an impact on advancing the rule of law, have formed the basis of this year’s ALB China Hot 25 list.

Now in its sixth year, the list aims to provide an – admittedly subjective – overview of the past year, listing those legal identities that have performed outstandingly in their field, or courted controversy and turned heads.

After all, winning the game is not always the “be all and end all” – it’s the style, poise, and class with which you play that most counts. We hope that this list provides some food for thought for our readers, or perhaps an interesting read amid busy schedules. The point is to entertain, not offend. ALB

Name

Firm

Charles Duan 段祺华

Duan & Duan 段和段

Michael Han 韩亮

Freshfields 富而德

Xu Jiali 徐家力

Longan 隆安

Xu Shouchun 徐寿春

V&T 万商天勤

Yao Jun 姚军

Ping An Insurance 平安保险集团

THE MOVERS Name

Firm

Charles Liang 梁飞

Run Ming 润明

Jiang Zhipei 蒋志培

Fangda Partners 方达

Li Xiaoyang 李晓阳

Kirkland & Ellis

Liu Jiqing 刘吉庆

Deheng Law Firm 德衡

Martin Hu 胡光

Martin Hu & Partners 胡光律师事务所

Shining lights Name

Firm

Ahmad Kusayer

Zhonglun W & D 中伦文德

Gary Locke

Davis Wright Tremaine (former firm)

Li Changqing 李长青

George Wu & Partners 邦道

Yan Yiming 严义明

Yan Yiming Law Firm 严义明律师事务所

Zhu Xiangyang 朱襄阳

Lantai 兰台 ISSUE 6.9

FEATURE | ALB Hot 25 >>

Displaying gusto, gravitas and a touch of charisma, these are the men and women who have made their mark by leading their firms, companies and practice groups through the global financial crisis.

Name: Wang Ling 王玲 Title: Managing partner Firm: King & Wood 金杜 Location: Beijing Why hot: With King & Wood continuing to cement its position as a leading PRC firm, Wang Ling keeps playing a pivotal role.

In what has turned out to be a very challenging year for most international firms, King & Wood has established a New York office and completed the merger with its long-time Hong Kong associate firm, Arculli Fong & Ng.

Name: Wang Zhongde 王忠德 Title: Managing partner Firm: Dacheng 大成 Location: Beijing Why hot: The vision that Wang Zhongde has for Dacheng is gradually becoming a reality, just as he had planned. This year, Dacheng has – for the first time – taken over King & Wood to become the country’s largest law firm by headcount. It is now also the largest firm in Asia, with more than 830 lawyers across 28 offices.

Dacheng’s expansion overseas marks the firm entering into a new development phrase. So far this year the firm has opened four offices in Taiwan, Singapore, Paris and Los Angeles and has formed new strategic alliances with other foreign firms.

Dacheng plans to expand its global reach further by adding additional offices in New York and other parts of the United States, and continue to pursue its goal of becoming a leading home-grown global law firm. www.legalbusinessonline.com

Name: Zhang Xuebing 张学兵 Title: Managing partner Firm: Zhong Lun Law Firm 中伦 Location: Beijing

Name: Lv Hongbing 吕红兵 Title: Chief executive partner Firm: Grandall Legal Group 国浩 Location: Shanghai

Why hot: Zhang Xuebing has been appointed as president of the Beijing Lawyers Association, replacing former president Li Dajin, who stepped down at the end of his three year term.

Zhang will leverage his prior legal experience managing one of the country’s largest law firms in his new position. The Beijing Bar Association is the country’s largest bar association, with over 18,600 members.

Why hot: Hongbing hasn’t had much time to rest after he stepped down as the president of the Shanghai Lawyers Association in April 2008, having raised its profile domestically and internationally while he was in office. He was appointed vice president of the All China Lawyers Association six months later, which will strengthen the capacity of the nation’s legal professions across the board.

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FEATURE | ALB Hot 25 >>

Name: Zili Shao Title: Asia managing partner Firm/Company: Linklaters Location: Hong Kong Why hot: It has been a comparatively easy step-up for Shao to the position as the firm’s new Asia managing partner, replacing the outgoing Giles White. Having already headed the firm’s Greater China practice since 2003, his appointment is a clear indication of where the firm will be looking for growth.

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Foresight, business acumen and a large measure of skill are the traits of lawyers profiled in this category.

Meet the names behind some of the watershed events in the industry this year.

Name: Bernd Stucken Title: Managing partner for Greater China Firm: Salans Location: Shanghai Why hot: Salans is known for its strengths in emerging markets and the former USSR countries. Under Stucken’s management, the firm has grown its China presence significantly in the past few years. Salans opened its Beijing office in 2008 and recently established an office in Hong Kong. To steer the China offices through the present challenging times and sustain growth, Stucken has decided to shift the firm’s practice focus from advising on FDI, M&A and investment in real estate, to restructuring, arbitration and outbound M&A.

Name: Matthew Laight Title: China managing partner Firm/Company: Bird & Bird Location: Beijing

Name: Wang Li 王丽 Title: Chief global managing partner Firm: DeHeng Law Offices 德恒 Location: Beijing

Name: Robert Lee Title: China managing partner Firm: Diaz Reus Location: Shanghai

Name: Cui Liguo 崔利国 Title: Managing partner Firm: Guantao 观韬 Location: Beijing

Why hot: Quashing rumours that the alliance forged with Singapore firm ATMD was not because Bird & Bird was unsuccessful in its attempt to obtain a QFLP in the Lion City, a very busy Laight had to also facilitate the expansionary firm’s launch in Shanghai last October.

Why hot: At the helm of Beijingheadquartered DeHeng is global managing partner Wang Li. The M&A practice is headed by Wang, and has posted a stellar performance for the first half of 2009. It was involved in five major deals to date, valued at US$19.1bn.

Why hot: Robert Lee, the partner-in-charge of Miami-headquartered Diaz Reus’s Shanghai office, sees opportunities in the increasing activity and trade between BRIC nations, particular with China’s interest in natural resources in Latin America, Russia and the Middle East. He is working closely with the firm’s offices in these markets to help Chinese clients achieve their goals.

Why hot: Cui Liguo is leading the international expansion strategy, with Guantao forming an alliance with Hong Kong firm Jackson Woo & Associates. A new Xiamen office is also up and running, contributing to the firm’s international trade and shipping practices, as well as facilitating economic ties between the mainland and Taiwan.

ISSUE 6.9

FEATURE | ALB Hot 25 >>

Technically brilliant and encompassing superior legal skills in existing and emerging areas, these are the lawyers who have operated at the vanguard of change in the profession

Name: Yao Jun 姚军 Title: Chief legal officer Firm/Company: Ping An Insurance 平安保险集团 Location: Shenzhen

Name: Charles Duan 段祺华 Title: Founder and managing partner Firm: Duan and Duan 段和段 Location: Shanghai

Why hot: Former partner with Commerce & Finance Law Offices, Yao is regarded as a high achiever in the in-house market.

Using his outstanding technical skills, business understanding and industry experience, he has assisted Ping An Insurance in pursuing growth strategies and controlling risks, both domestically and internationally. He was appointed secretary of the board in October 2008, and continues to serve as the head of legal.

Why hot: Shanghai’s lawyer of the moment, Duan has made international headlines for his involvement in the high-profile Rio Tinto bribery case. He will represent Australian citizen Stern Hu, the general manager of the Rio Tinto sales team in Shanghai, before the court, defending him against allegations of illegally obtaining commercial secrets and receiving bribes from officials. This is a case that has raised tensions between Australia and China recently.

www.legalbusinessonline.com

Name: Xu Jiali 徐家力 Title: Founder and managing partner Firm: Longan 隆安 Location: Beijing

Name: Xu Shouchun 徐寿春 Title: Senior partner Firm: V&T 万商天勤 Location: Beijing

Why hot: Xu Jiali has gained a reputation as one of China’s best intellectual property practitioners, through his handling of a wide range of patent, trademark, and copyright cases.

Xu, who heads the firm’s IP practice group, is the first postdoctoral scholar in IP law in China and the only doctoral instructor to date. He has been involved in many landmark cases, three of which were selected as the 100 typical IPR cases, since the nation’s reform and opening up by the Supreme People’s Court in 2009.

Why hot: As a highly regarded lawyer for capital markets and securities matters, Xu has advised on a large number of IPOs, listings, share placements, and restructurings and transfers of Chinese companies, both at home and abroad. He was appointed to the first issuance examination committee for the newly launched Shenzhen Growth Enterprise Board, by the China Securities Regulatory Commission.

Name: Michael Han 韩亮 Title: Co-head of China ACT practice Firm: Freshfields 富而德 Location: Beijing Why hot: Michael Han, a newly promoted partner based in Beijing, is now co-heading the firm’s China antitrust, competition and trade practice (ACT), with partner Nicholas French in Beijing and partner Connie Carnabuci in Hong Kong. Before joining the firm, Han worked with the Ministry of Foreign Trade and Economic Cooperation (now the Ministry of Commerce). He has extensive expertise in the competition and regulatory aspects of China-related FDI and cross-border M&A transactions.

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FEATURE | ALB Hot 25 >>

Whether they have moved in-house or back into private practice, joining up with the competition or just generally on the way up, these are some of the more remarkable legal practitioners seen in this category over the past year

Name: Li Xiaoyang 李晓阳 Title: Senior partner Firm: Kirkland & Ellis Location: Hong Kong

Name: Charles Liang 梁飞 Title: Executive partner Firm: Run Ming 润明 Location: Beijing Why hot: Previously the general counsel for Alstom in China, Liang decided to return to private practice and chose Beijing-based Run Ming, a new but fastrising firm. He has extensive experience in FDI, M&A, international technology transfer and commodity trade, dispute resolution, and key areas of law related to the operations of multinational corporations in China.

Why hot: Although it’s rare for Jun He’s senior partners to depart, the firm lost its Beijing senior partner to United States firm Kirkland & Ellis at the end of 2008. Li is now a senior Chinese corporate partner in Hong Kong, representing private equity funds and international and domestic public and private companies, in their M&A transactions and other complex corporate matters in China.

Name: Martin Hu 胡光 Title: Founder, managing partner Firm: Martin Hu & Partners 胡 光律师事务所 Location: Shanghai

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Name: Liu Jiqing 刘吉庆 Title: Head of international practice Firm: Deheng Law Firm 德衡 Location: Beijing

Name: Jiang Zhipei 蒋志培 Title: Senior counsel Firm: Fangda Partners 方达 Location: Beijing

Why hot: Former resident partner and chief representative of Baker & Daniels’ Beijing office, Liu has joined Qingdaoheadquartered Deheng to lead its international practice group in Beijing. Qualified to practice law in the United States, he has been practising in China for more than 10 years. His practice mainly focuses on China-related crossborder investment, M&A and international trade.

Why hot: Jiang Zhipei, the former chief justice of the IPR Tribunal of Beijing’s Supreme People’s Court, has decided to continue his legal career with Fangda Partners as senior counsel, following his retirement from the court after 18 years on the bench. Jiang is one of the most distinguished experts in intellectual property law. In his pursuit of a judge’s career, Jiang participated in China’s IPR law system reform and handled numerous IPR cases.

Why hot: Martin Hu left Boss & Young, which he founded in 1999 with other partners, to start anew. Determined to build a local firm with international management structures producing a consistently high standard of quality legal services, Hu created the boutique firm that bears his name. Most of his clients followed him, as he is an experienced and reputable lawyer providing corporate and M&A legal services to multinational clients.

ISSUE 6.9

FEATURE | ALB Hot 25 >>

These practitioners have distinguished themselves in a particular field of expertise – whether it be as a forerunner in a particular legal area, holding a significant appointment or serving the interests of the public and community

Name: Gary Locke Title: United States Secretary of Commerce Location: Washington DC Why hot: Gary Locke, the former co-chair of the China practice at United States firm Davis Wright Tremaine (DWT), has returned to public service as the Secretary of the Department of Commerce of the United States. Locke joined DWT in 2005 after two successful terms as the Governor of the State of Washington. His leadership of the firm’s China practice has been instrumental in DWT’s growth and success in the region to date. www.legalbusinessonline.com

Name: Ahmad Kusayer Title: Director, Middle East Firm: Zhonglun W & D Law Firm 中伦文德 Location: Beijing/Riyadh

Name: Zhu Xiangyang 朱襄阳 Title: Lawyer Firm: Lantai 兰台 Location: Beijing

Why hot: Ahmad Kusayer has played a key role in the establishment of Zhonglun W&D’s Middle East practice group and the branch office in Riyadh, the capital city of Saudi Arabia. He manages the development of the Riyadh office and the firm’s Middle East practice group, providing legal services to both Chinese clients doing business in the Middle East, and clients from the Middle East investing in China. Zhonglun W&D is the first PRC firm to successfully establish a presence in the Middle East region.

Why hot: Zhu Xiangyang has become the first Taiwan resident permitted to practise law on the mainland, following the Ministry of Justice’s April 2008 announcement allowing Taiwan residents to sit the mainland judicial exam and become PRC-qualified lawyers. As a regulatory requirement, he can be granted a certificate to be an official PRC-qualified lawyer, after taking a one-year internship in a law firm.

Zhu is currently working as a trainee lawyer in Beijing’s Lantai Law Firm.

Name: Yan Yiming 严义明 Tile: Founder & managing partner Firm: Yan Yimin Law Firm 严义 明律师事务所 Location: Shanghai Why hot: Yan Yiming, a Shanghai lawyer well-known for his expertise in securities law and his track record of taking on public-interest cases, has raised his profile internationally.

Shortly after the government announced its CNY4tr stimulus plan, Yan made requests with the Ministry of Finance and NDRC to make public the detailed expenditure of the hefty stimulus package. His reasons were public concern with possible fund misuse, corruption and the effect on macroeconomic control.

Name: Li Changqing 李长青 Title: Lawyer Firm: George Wu & Partners 邦道 Location: Beijing Why hot: Li Changqing is one of the first lawyers to test the country’s new Anti-Monopoly Law for issues relating to abuse of dominant market position. He represented Tangshan Renren Information Services in a court case against internet search giant Baidu for alleged anti-trust violations.

Although a verdict is yet to be handed down by the court, the case is heralded as one of the earliest high-profile anti-trust private litigation matters run in the country.

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FEATURE | M&A >>

A smelter plant of Chinalco, the record-keeper for the largest Chinese overseas investment to date

China M&A:

When East takes on West The Middle Kingdom has taken centre stage as the world recovers from global recession, and leading law firms are now playing a leading role in China’s surge of outbound M&A business.

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ISSUE 6.9

FEATURE | M&A >>

O

utbound M&A work has long been hailed as the ‘next big thing’ among law firms. The phenomenon has now arrived as China goes shopping world-wide for raw materials, technology, brands and more.

Earlier this year, the nation took a further step towards becoming a true international player in the global market, while the rest of the world is still reeling in pain after being dealt the GFC blow. The Chinese Ministry of Commerce (MOFCOM) issued new regulations as part of Beijing’s encouragement for local business to expand internationally.

What quickly followed was a drastic shift in PRC companies’ strategy to compete globally. “China has undergone a lot of internal restructuring, with policies making it easier for companies to venture out and invest in foreign countries,” says Andrew Hensher, who is the co-head of Australian law firm Chang Pistilli & Simmons’ PRC unit.

For the past year, China has been the great net exporter of capital.

The financial crisis has proven to be an opportune time for China to gain a foothold buying soft and hard commodities at bargain prices.

“Domestic companies are ‘cash-rich’ and M&A has become a very natural way for the Chinese to grow their business and expand internationally,” says Betty Tam, Herbert Smith’s Shanghai-based M&A partner.

It seems like the increase in PRC outbound deals is here to stay, so herein lies the question of competition between domestic and international firms. Will international or domestic firms be better equipped to snatch a larger share of the pie?

The failed Chinalco US$12bn bid on Rio Tinto alone had nine international law firms and one PRC firm working on the transaction; China Petrochemical’s acquisition of Addax Petroleum had five foreign firms and no PRC firms involved; and China Minmetals US$2.3bn acquisition of OZ Minerals had three international and no domestic firms.

“The increase in Chinese companies undertaking M&A activities offshore is a clear and growing trend and one that plays to the strengths of international firms,” says Antony Dapiran, M&A partner at Freshfields. “PRC firms are certainly strengthening themselves in terms of their ability to service international clients.

►► League table - 2009 legal advisers to Asia-Pacific (ex Japan) M&A: Value 2008 rank

2009 rank Law firms

41

Value (US$m)

Deal count

1 Commerce & Finance

20,248

4

2 DeHeng

19,171

5

3 Mallesons Stephen Jaques

17,793

22

1

4 Linklaters

16,540

12

6

5 Allens Arthur Robinson

15,256

8

6 Simpson Thacher & Bartlett

13,923

4

– 16

22 17

7 Freshfields Bruckhaus Deringer

13,899

18

13

8 Johnson Winter & Slattery

13,591

3

19

9 Clifford Chance

12,867

13

12,828

2

39 www.legalbusinessonline.com

10 Wachtell, Lipton, Rosen & Katz

“They have cost advantages over international firms, but [those] firms with international experience still have an edge when it comes to a transaction Betty Tam Herbert Smith with a significant cross-border element, requiring international expertise,” he added.

Stuart Mengler, who is the Beijing-based M&A partner at Australian firm Allens Arthur Stuart Mengler Robinson, echoes this.

Allens Arthur “PRC firms will Robinson naturally have an advantage in purely local deals which do not involve a foreign element.

However, international firms with the right experience bring a great deal of international understanding and expertise which is critical to many foreign clients when looking for assistance with their transactions.”

Most international firms in China were initially set up to service inbound investments. Yet they have been reinventing themselves recently to target growing outbound investments.

As activity increases in scope and

“The increase in Chinese companies undertaking M&A activities offshore is a clear and growing trend and one that plays to the strengths of international firms” Antony Dapiran, Freshfields 39

FEATURE | M&A >>

volume, and recognising the increased competition with international firms for China’s outbound investments, King & Wood has dedicated a specific PRC outbound-investment team to assist domestic clients who intend to invest abroad. The firm also maintains strategic relationships with international firms, selecting and coordinating foreign counsel for clients.

While Hensher concurs that international firms might be better placed to dispense legal advice under different jurisdictions, he believes that PRC investors will continue to engage advice from a ‘local agent’.

Collaboration between international and domestic firms will not be uncommon. “International firms that already have a strong presence in

China will benefit greatly from local relationships that are developed by being on-the-ground,” Mengler adds.

It is not uncommon for domestic and international firms to work together on large M&A deals and cross-border matters. Foreign firms ensure deals are structured to international standards, and domestic firms ensure compliance with PRC law.

►► Notable PRC and Hong Kong announced M&A deals - H1 2009 Deal

Legal advisor to acquirer

Legal advisor to target/seller

Value (US$m)

China Yangtze Power/ China Three Gorges Project Corporation (hydroelectricity generation assets and stakes in peripheral service companies)

DeHeng

N/A

15,818

Chinalco/Rio Tinto (stakes in nine mining companies)

Chiomenti Studio Legale, Clifford Chance, Commerce & Finance, Mallesons, Simpson Thacher & Bartlett

Allens Arthur Robinson, Fried Frank, Harris, Shriver & Jacobson, Linklaters, Wachtell, Lipton, Rosen & Katz Advising financial advisors: Johnson Winter & Slattery

11,838

China Petrochemical/ Addax Petroleum

Stikeman Elliott, Vinson & Elkins

Fasken Martineau, Fraser Milner Casgrain, Osler, Hoskin & Harcourt

8,800

Bank of America – sale of 5.78% stake in China Construction Bank Corporation

Clifford Chance

Commerce & Finance, Cleary Gottlieb Steen & Hamilton, Deacons

7,319

Yanzhou Coal/ Felix Resources

Corrs Chambers Westgarth, King & Wood, Baker & McKenzie

Allens Arthur Robinson

3,300

GCL-Poly Energy/Jiangsu Zhongneng

Freshfields Bruckhaus Deringer, Grandall Legal Group, Hogan & Hartson

N/A

2,569

China Minmetals/OZ Minerals

Baker & McKenzie, Blake Dawson

Freehills

2,393

Royal Bank of Scotland – sale of 4.26% stake in Bank of China

Herbert Smith, Gleiss Lutz, Stibbe

Linklaters Advising financial advisors: Davis Polk & Wardwell, Slaughter and May

2,381

Ping An Insurance – stake acquisition in Shenzhen Development Bank

DeHeng, DLA Piper

Haiwen, Fangda Partners, Freshfields Bruckhaus Deringer

2,278

Tianjin Port Development – stake acquisition in Tianjin Port Company

Freshfields Bruckhaus Deringer

Global Law Office, K&L Gates

1,936

China CITIC Bank – stake acquisition in CITIC International Financial Holdings

Freshfields Bruckhaus Deringer, King & Wood

Richards Butler/ Reed Smith

1,750 Source: Mergermarket

“China will benefit greatly from local relationships that are developed by being on-the-ground” Stuart Mengler, partner, allens arthur robinson 40

ISSUE 6.9

FEATURE | M&A >>

Rising domestic transactions

The surge in outbound M&A is not to suggest a decline in the domestic market. Signs of merger activity picking up in China have been apparent for many firms in the past few months, with a number of PRC firms the largest beneficiaries.

Mergermarket’s 2009 league tables show there were 462 deals announced in Q2 2009, over 11% more than in the previous quarter. Also, the largest ten deals in the Greater China region announced in the first half involve a local bidder or acquirer.

Beijing-based Commerce & Finance Law Offices and Deheng Law Firm have climbed to the head of the AsiaPacific (ex Japan) M&A legal advisory league table, by value, marking the first time that a PRC firm has topped a lead board.

In the first six months of 2009 these two firms have respectively advised on US$20bn and US$19bn worth of deals. Haiwen & Partners, the only other PRC firm in the rankings, is in 19th place by volume, advising on eight deals worth US$4.6bn.

Shanghai-listed China Yangtze Power’s plan to acquire US$15.8bn worth of assets from its parent company, China Three Gorges Project Corporation, is one of the biggest asset restructurings in the local capital market. DeHeng is the sole legal advisor to China Yangtze Power.

“With China’s economy continuing to grow sturdily and leading the global market recovery, major domestic companies will keep pursuing major deals across a range of sectors, including natural resources, renewable energy and high technology,” says chief global partner at the firm, Wang Li. While some foreign-client-oriented law firms have seen a decrease in instructions for M&A transactions over the past 12 months, Deheng has enjoyed solid growth. According to Wang, M&A has become an important part of the firm’s business.

Total revenue proportion for this work increased by 20%, over the same period last year. “The country is undergoing a significant readjustment www.legalbusinessonline.com

“We believe that PRC firms will become increasingly dominant in Greater China’s M&A market. It is an inevitable trend” Wang Li, chief global partner, Deheng Law Offices of its industrial structures, and the large-scale state-owned enterprises are undertaking major restructurings and consolidation,” she says.

“This market evolution has created strong demand for M&A legal services.”

Beijing-based DeHeng has developed a strong M&A practice group growing in line with the market, now with more than 10 partners and over 100 lawyers headed up by the chief global partner.

The group has been involved in many major and complex M&A transactions in recent years.

Some of their deal highlights include advising China Resources on its acquisition of industrial conglomerate China Worldbest Group; Shell China’s acquisition of Tongyi Petroleum Chemical; FAW Group’s acquisition of Tianjin automotive manufacturer Xiali; and, most recently, assisting Ping An Insurance in its acquisition of Shenzhen Development Bank.

“We believe that PRC firms will become increasingly dominant in Greater China’s M&A market – it is an inevitable trend,” Wang says.

“The global financial crisis sweeping through the world has had a profound impact on many economies. But China’s fast recovery ahead of [the] global economy has triggered a new, phenomenal M&A wave led by domestic companies,” she says.

“The emergence of PRC firms is a natural progression, as they actively assist many notable transactions to successful completion.”

The US$2.6bn Wang Li merger between China DeHeng Eastern Airlines and Shanghai Airlines is the latest

manifestation of the current domestic M&A phenomenon. Although China Eastern is listed on the Hong Kong Stock Exchange (HKSE), the company’s general counsel, Guo Junxiu, sought out not a Hong Kong firm but Commerce & Finance for this transaction.

Shanghai Airlines turned to its perennial legal advisor Fangda & Partners for advice. “PRC firms have learned a lot from their international counterparts in past years, and have made impressive progress in handing large, complex M&A transactions,” says Gao Yang, a partner with Fangda.

“Firms will increasingly play a lead role in transactions that have major PRC elements.” ALB

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ALB special report | China 09 >>

CHINA 09 Continuous revolution

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ISSUE 6.9

ALB special report | China 09 >>

A

s western markets went into freefall a year ago with company collapses and banks going bust, Asia was being viewed as the brightest light in an otherwise overcast economic sky.

Top-line economic growth exceeded even the ‘conservative’ 6% that was predicted by the World Bank. It’s not difficult to see why, with a host of local companies having the wherewithal, risk appetite and capital to strike overseas and domestic deals.

Yet the country’s recent stellar economic performance (or for that matter, over the past 30 years) shouldn’t obscure an important emerging reality. As far as China has come, the country still has much further to go, with lawyers having a central role to play.

Whereas in the past it was relatively easy to draw a distinction between the roles of international and domestic lawyers, the last six months have shaken up the complexion of the legal services market. The impulse to grow, while never abating in China’s expansionary domestic law firms, has been thrown into overdrive by the financial crisis.

Headcounts swelled exponentially, offices have been opened at break-neck speed and domestic law firms are fast attaining a quality some thought was the exclusive province of international firms. China’s firms have taken the lead roles on securities deals and mega-M&A transactions and snared international clientele to prove it.

There is a seismic shift underway in the legal services market – a continuous revolution – and it’s seeing the local firms become international.

State of the market

The complexion of the legal services market over the past year was in many ways a carbon copy of that seen elsewhere in the region. Inbound M&A volumes dried up, securities and capital markets work disappeared, seemingly overnight. www.legalbusinessonline.com

Mega-deals were replaced instead by a trickle of less frequent but large ‘strategic’ outbound investments.

Work in counter-cyclical areas such as dispute resolution, insolvency and restructuring came into its own.

In other places there was little hope for a speedy recovery; here it was only a matter of months until things returned to normal. And if recent activity is anything to go by, the Chinese market has bottomed out and is on the upswing.

Deals of all sizes are again flowing freely and securities work such as A-share listings and red-chip offerings are back. Boards are lighting up as deals such as CSCEC’s US$6.2bn offering, Zhongwang’s US$2bn IPO, and 361 Degrees and BaWang push through. It seems things will only become busier.

“In late 2008 and in the first quarter of 2009, there was talk of China leading economic resurgence and it has,” says David Liu, a partner with Jun He. David Liu, Jun He “On the transactional side things were slow, but even then we could sense clients were positioning themselves … there

was a feeling that the market wouldn’t be down for long and for lawyers there was a need to be patient, to wait for the market to bottom out. Judging from what we have seen over the last few months, we are now at that stage.”

Outbound M&A, rather than inbound volumes, has been at the centre of this rebound. This is shown by deals such as Chinalco’s quest for a US$19bn stake in Rio Tinto, Yangzhou’s acquisition of Australian miner Felix Resources and CCB’s acquisition of IAG’s consumer credit business in Hong Kong. Whether outbound activity will continue once the markets return to ‘normal’ is another story. “[The move] away from inbound investment to outbound investments is understandable, due to problems in other parts of the world … but we think it will come back,” says Peter Charlton, Peter Charlton, Clifford Chance’s foreign Clifford Chance legal consultant in the Hong Kong office.

“We do think that Asia, particularly China, is still on the radar as an opportunity for international investors, but its difficult to predict when significant inbound work will pick up.”

►► China’s largest domestic law firms Rank 1 2 3 4 5

Firm Dacheng King & Wood DeHeng Law Offices Grandall Jun He

Total lawyers and partners 835 800 675 419 338

Managing partner Wang Zhongde Wang Ling/Wang Junfeng Wang Li multiple Xiao Wei

Offices 28 16 14 10 7

►► 2. China’s largest international law firms Rank 1 2 3 equal 4 equal 4

Firm Baker & McKenzie Freshfields Gide Loyrette Nouel DLA Piper Jones Day

Total lawyers and partners Managing partner 98 David Fleming 60 Teresa Ko 55 Han Qimeng, Yan Lan 54 Roy Chan, Liu Wei 54 Winston Zhao, Peter Wang Source: ALB 50

43

ALB special report | China 09 >>

These will be changes that are sure to present local practitioners with a number of challenges in the months ahead. Just as global economic slowdowns affect macroeconomic change, so too do they cause paradigm shifts to things like the business development strategies of law firms and the fabric of the legal market itself.

Changes like this will ensure that practicing law in a legal market going into recovery will be a markedly different proposition from practicing law in the good times.

Change is good

Even the most cursory glance at the empirical data offers an indication of how the domestic legal market has shifted, since the onset of the financial crisis. In just over 12 months, most of the country’s leading domestic law firms have grown, at rates unimaginable elsewhere.

Dacheng increased its headcount by just under 300 staff and is now unrivalled as the country’s largest firm by numbers, with 835 lawyers.

King & Wood increased its staff count by 150, Deheng Law Firm by 270, and Grandall and Allbright by nearly 50.

Just as these firms’ lawyer numbers have grown, so too has their regional and international footprint.

Dacheng now has over 28 offices, four internationally, which is 13 more than in 2008, Deheng Law Firm has opened four additional offices and King & Wood has opened three, including

• Securities and Capital Markets • Banking and Finance • Competition/Antitrust • Bankruptcy • Dispute Resolution

its much-publicised New York office.

(It should be noted in addition, that Jun He, Shanghai-based firm Richard Wang & Co and Shenzhen-based firms Guanghe and Shujin also have a United States presence).

Is this slightly counter-intuitive in an environment where some of these firms’ international counterparts have downsized – or are actively looking to pare back their operations?

Zhang Yi, a partner with King & Wood and head of the firm’s Shanghai operations, doesn’t think so. He says that it’s not always accurate to compare international and domestic firms on this Zhang Yi, point, as growth for local King & Wood firms is often motivated by a different set of concerns.

“The local legal industry is still developing so it’s no surprise to see that many are still focusing their attention on achieving growth,” Zhang says. “The size of the firm is important as the deals that happen here, both inbound and outbound, are extremely complex and often require teams of lawyers. Firms that do not have the critical mass simply can’t compete,” he says. “It’s a different proposition for international firms as they have access to lawyers in countless branch offices.”

Cover all areas

Nevertheless, it’s not necessarily about having offices scattered across the world. King & Wood’s and Jun

He’s global visions notwithstanding, sometimes it is about having people on the ground across China itself, which is equally as important. The past year has been a watershed in this regard.

Strategic change was governed not only by the concerns of organic growth, but by fundamental demographic shifts in Chinese society and that of clients. Whereas in the past the growth of law firms was more or less solely

• Insurance • Corporate and M&A • Real Estate • Infrastructure and project finance

• International Trade • Intellectual Property • General Business Law • Shipping & Marine

Beijing Shanghai Shenzhen Hangzhou Guangzhou Kunming Tianjin Chengdu Ningbo Fuzhou HongKong 44

ISSUE 6.9

ALB special report | China 09 >>

dependant on the events transpiring in the powerhouse economies of Beijing and Shanghai (and to a lesser extent, Guangzhou), now many other fastgrowing ‘second-tier’ cities are being mentioned in the same breath.

Places like Chengdu, Tianjin, Qingdao, Jinan, Fuzhou and Xiamen, together with the Bohai Rim and Western regions, are among the most exciting prospects for growth. ALB found many domestic law firms busy planning growth strategies around these locations, as the implications of China’s economic miracle starts to spread inland.

“Beijing and Shanghai play a positive role as the economic powerhouses of the country … due to their special locations and statures,” says Charles Charles Guan, Guan, a partner with Grandall Grandall. “[But] some cities in the central and western regions of China as well as cities in the westbank economic regions will also benefit.”

However, the more developed regions such as the Pearl and Yangtze River Deltas also continue to provide highend, quality legal work and ample opportunities for the growth of legal practices. “The Yangtze River Delta region is crucial to our development, and I would imagine that of our competitors,” says King & Wood’s Zhang. “It is home to a new class of wealth creator and entrepreneur and the region is in real need of high-calibre commercial lawyers, who are able to assist companies from places like Zhejiang, Jiangsu, Anhui and Fujian, in fulfilling their international aspirations.”

According to Jun He’s Liu, branch offices mean nothing unless they are complemented by a similarly wide swathe of services. This is another area to have undergone substantial change in the past 12 months. “Long-arm service or a critical mass of offerings is just as important,” he says.

“A firm needs to be able to demonstrate to clients that it has the ability to do the Cont p48

Kangqiao Law Firm is one of the first-class law firm which provides comprehensive legal services to meet the diverse needs of our external and internal clients. It headquartered in Jinan, with offices in Qingdao, Yantai, Zibo and Linyi, Shandong Province. There are 20 partners and over 100 lawyers in practice.

We are strong in bankruptcy and liquidation, litigation and arbitration, foreign legal affairs, foreign investment affairs, finance and insurance, intellectual property, real estate, securities, BOT/TOT and corporation affairs.

Our teams: Dept. of Corporation Affairs, Dept. of Securities, Dept. of Investment Affairs, Dept. of City Constructive Affairs, Dept. of Construction Project, Dept. of Real Estate, Dept. of Financial & Insurance, Dept. of International Affairs, Dept. of Litigation & Arbitration, Dept. of Intellectual Property, Dept. of Legal Research.

Headquarter’s COntaCt details:

Add: Room 515 Zhongxin Square, No.150 Luoyuan Street, Jinan, China Tel: 86-531-86128621/22/23 Fax: 86-531-86128620

Http://www.kqlawyer.com

OffiCes’ COntaCt details:

10th Customs Building, No.1 North Road, Yantai, China 5th Time&Space Building, No.141 Jinqueshan Road, Linyi, China 8th International Trade Building, No.107 Liuquan Road, Zhangdian Area, Zibo, China 11th Merchants Bank Tower, No. 36 Hongkong M. Road, Qingdao, China

www.legalbusinessonline.com

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www.zhongyinlawyer.com

office_sh@zhongyinlawyer.com

office_sz@zhongyinlawyer.com

www.zhongyinlawyer.com

Zhong Yin Law Firm, founded in January 1993, is one of the earliest partnership law firms in China, now specialising in providing clients with finance and securities-related legal services, and enterprise legal risk management.

Rising significantly in strength after the merger with Zodiac Teamer in March 2008, the firm has nearly five hundred lawyers and staff. Most lawyers are master’s or doctor’s degree holders. Headquartered in Beijing, Zhong Yin Law Firm has subsidiaries and offices in around ten cities including Shanghai, Shenzhen, Chengdu, Xiamen, Guiyang, Nanning, and Frankfurt.

As one of the earliest securities-related legal service providers in China, the firm has helped nearly 100 clients with IPOs and has served ¨C or is serving ¨C around 300 listed companies. Our legal risk management services are utilised by trans-national companies, large domestic enterprises and industry organisations including National Security Fund Council, China Development Bank and Sinopec.

Zhong Yin Law Firm adheres to talent and brand strategies oriented towards internationalisation, professionalism and scale. The firm holds a service concept: “Clients top priority, solidarity and cooperation, due diligence, high-quality and efficiency”.

An operation concept is also in place, “providing clients with high-quality and efficient legal services, creating warm and aggressive development platform for employees, and realising excellent and steady value returns to partners”. Excellence in legal services enable Zhong Yin Law Firm to be the most acceptable and reliant partner for all of its clients.

Beijing Head Office 16/F, Tower 3, Beijing International Center, No. 38 DongSanHuan Bei Lu, Chaoyang, Beijing, China Postcode: 100026 Managing Director: Zhao Cenghai Tel: +86-10-8587-9988 Fax: +86-10-8587-9966 E-mail: office@zhongyinlawyer.com

Shanghai Branch Block H&I, 21/F, world Plaza£¬855 Pudong Road S., Pudong, Shanghai Postcode:200120 Managing Director: Xu Qiang Tel: +86-21-6887-1787 Fax: +86-21-6886-9532 E-mail: office_sh@zhongyinlawyer.com

Shenzhen Branch 28/F, Modern International Building, 3038 Jintian Road, Futian District, Shenzhen Postcode: 518048 Managing Director: Peng Zhangjian Tel: +86-755-8385-1888 Fax: +86-755 -8253-1555 E-mail: office_sz@zhongyinlawyer.com

ALB special report | China 09 >>

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big deals, that it has the people and the resources to do things like due diligence, to make sure that if antitrust, IP, trade or other matters come up in a cross-border deal, that your firm can handle them and they won’t need to be outsourced.”

Most of the country’s largest domestic firms have sought to bring their practice offerings to ‘critical mass’ over the past year. King & Wood, Grandall and Jun He have all invested heavily in developing their expertise in ‘new’ areas of the law such as anti-trust, anti-dumping and trade, outbound FDI, insolvency and restructuring.

But the increasing sophistication of China’s mid-tier and boutique firms that Zhang, Guan and Liu talk of is not only limited to these players.

International law firms and those inhouse lawyers ALB interviewed agree that this applies to all domestic firms in the Chinese legal market.

So much so, that as much as the larger firms face stern competition from emerging boutique and specialist law firms, they are also now at stage where they can challenge the international law firms for a slice of their market share.

Unveiling the new

There has always been – rightly or wrongly – a qualitative stigma attached to domestic law firms in China. Ever since laws were passed allowing them to practice, there were misgivings about everything; from their service standards and ability to handle the big deals, to the technical skills of employed lawyers.

Such views – if they were ever true – are being quickly dismissed, in a market that is hurtling towards maturation.

“The capacity of local law firms to provide high-calibre international advice is increasing by the day,” notes Robert Lee, a partner with Diaz Reus.

“Lawyers within these firms are technically sound and have international experience, gained from studying overseas and working in international firms. They are playing a role in lifting standards across the board.”

Standards seem to be increasing to the point where many international firms cite domestic firms as definite rivals in the Chinese legal market. “In some areas of outbound and inbound work, they are definite rivals for international firms,” says Lee. “They have local knowledge and access to regulators which some internationals do not have.”

David Flavell, Danone’s general counsel for Asia Pacific, shares Lee’s view. He believes more intense competition between domestic and international firms will be David Flavell, a defining feature of the Danone Chinese legal sector going into recovery from the GFC. “Local firms appear to be managing better,” he says.

But just what lies beneath this change?

A simple explanation may be found in the fact that growth – and the changes that accompany it – are mere consequences for a legal market that is still itself developing.

The lawyers that ALB interviewed agree it has as much to do with the competition that the country’s leading domestic firms face, from all segments of the market. “The local firms in the firsttier of the market face the same strong competition that they always have,” says Liu. “But what is different now is that there is more competition coming from the second and third tiers of the market.”

He adds that “in emerging areas like anti-dumping, anti-trust, trade and some securities areas they are doing better and better and their rise should be noted.”

Others are also feeling the pressure.

“The boutique and specialist practices that are setting up now present a very strong challenge to the larger firms,” says King & Wood’s Zhang. “Their partners are either from international law firms or have extensive international experience and they are capable of handling high-end work. It is getting to the stage where there are no question marks over their quality – as there may have been previously.”

It is not only in niche areas that the country’s larger firms are feeling the heat. “Competition between domestic firms in the area of general corporate [work] is most apparent,” says Grandall’s Guan, “because such practice has lower barriers and, for most of the law firms, is the fundamental for them to maintain their daily operations.”

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Playing lead counsel

ISSUE 6.9

Firm Profile

King & Wood PRC Lawyers

King & Wood: Radical coverage across the Yangtze

S

ince establishing Shanghai as its first branch office outside its Beijing headquarters in 1995, King & Wood has gone from strength to strength.

It has not only grown its offering into one of the most formidable in the Chinese legal arena, practicing the full gamut of corporate law – everything from FDI, M&A, infrastructure and private equity to banking & finance, securities, labor law, litigation and IP work (including patent, trade secret, trademark, software protection and so on) – but it has a geographical reach that extends beyond Shanghai to the rapidly growing provinces of Jiangsu and Zhejiang, amongst others. But the firm’s development so far is but a mere stanza in a much longer narrative of growth as Zhang Yi, head of the firm’s Shanghai office, tells ALB.

Radical coverage As Shanghai’s premier law firm, clients at King & Wood are serviced by a unparalleled number of experts and dedicated professionals – with 30 partners and over 120 lawyers, paralegals and IP professionals. “We are one of the largest firms in Shanghai in terms of critical mass and the only Shanghai office to exceed RMB200m in revenue for one calendar year ever in the legal history of Shanghai – a big achievement for a Shanghai based law firm and evidence of the quality, high-value work that we are doing here.” The firm’s extensive geographical reach makes it easier for clients to utilise the services of its expert professionals. King & Wood, as a full service firm, has a network that is the envy of many domestic law firms in China (and for that matter, a number of international firms as well), with approximately 800 lawyers in 13 Greater China offices (including Hong Kong) and three international offices in New York, Silicon Valley and Tokyo. The Shanghai office – part of a Yangtze River network that includes newly opened offices in Suzhou and Hangzhou – all cover the whole gamut of commercial law services. As the saying goes, many hands make light work, and that is certainly the case at King & Wood.

“Our Shanghai office, combined with the offices in Suzhou and Hangzhou gives us radical, unrivalled coverage across the Yangtze River Delta,” says Zhang. “From these locations we are able to cover Jiangsu, Zhejiang and even Fujian and Anhui provinces – all of which have been noted as www.legalbusinessonline.com

being among the fastest growing areas in China and home to country’s new generation of entrepreneurs.”

Locally-grounded advice But with all PRC law firms either rapidly expanding into the country’s fast-growing regional centres, it’s often hard to distinguish one firm from another. So what separates King & Wood from the rest? Zhang says it’s the firm ability to offer global advice which is inherently locally based.

“We emphasise localisation. Our lawyers know the local people, they know the local businesses, entrepreneurs and markets, he says. “A lawyer working for a client in Suzhou or Zhejiang has the local knowledge as well as the ability to put that client in touch with King & Wood resources in Shanghai, other parts of China and the world. This puts us at an advantage over many of the firms in Shanghai who don’t have access to a network as extensive as ours – we can offer seamless advice, a one-stop shop.”

As important, says Zhang, is the firm’s breadth and depth of service. King & Wood’s corpus of lawyers in Shanghai and across the Yangtze are as well-versed in high-end capital markets, M&A, private equity and banking & finance work and just as up to speed in emerging practice areas in the Shanghai legal market such as litigation, arbitration and intellectual property.

“We are unique in that some other firms in Shanghai do not have a well-developed practice in areas like IP and capital markets,” he says. “We are in a better position than local law firms in Jiangsu or Zhejiang to assist local companies there in ensuring that their businesses are protected and able to reach their full potential, we have their interests covered in these troubling economic times.

Expertise More critical than the size and scope of King & Wood’s offerings across geography is the top talent that it employs in the key practice areas.

In banking and finance they have Jack Wang and Shaun Lee who are both considered as foremost experts in the area, and for FDI and M&A Mark Schaub and Jonathan Pan have been the ‘go-to men’. Shanghai’s securities practice is led by Zhao Xiaohong who is often referred to as a savvy lawyer for red-chip listing. The dispute resolution department led

by Denning Jin handles complex international and domestic litigation and arbitration cases.

Zhang Yi, King & Wood

Cecilia Lou is known as a renowned IP legal services expert, providing IP prosecution, registration and IP legal services to clients, and enforcing clients’ IP rights supported by the firm’s litigation lawyers.

The market But as the economic outlook improves, King & Wood is equally well-positioned to assist clients in capitalizing on the opportunities that it presents. “We are already seeing improvements in the markets, and we are handling more work alongside A-Share listings, M&A, etc.”

“We predict that this will continue as Shanghai consolidates its position as China’s, and the region’s, international financial centre and the authorities encourage companies to embark on GEM, A-Share, red chip and H-Share listings.”

Just as Shanghai has been earmarked by the State Council as China’s next international financial centre, so too has the city been identified by King & Wood as a vital plank in the firm’s regional and international strategies. “We have invested as a firm in China’s three centres: Beijing, Hong Kong and Shanghai and our strategy will be governed by developments here,” says Zhang.

“We will take baby steps in how we develop our practice – because this is prudent in the current economic climate – but we will use the momentum we have built up as one of Shanghai’s leading firms to grow to assist our clients. As Shanghai continues to grow in importance in China and internationally, so too will our Shanghai practice, it can only get stronger.”

49

ALB special report | China 09 >>

“I expect the leading local firms to continue to grow and continue to provide active competition for the international firms.”

While Clifford Chance’s Charlton does note that standards have improved, he says that despite the increasing sophistication of PRC firms they still can’t match the international firms’ global networks.

“On average I would say that international law firms are becoming more competent and this is a gradual process,” he notes.

“But what PRC firms don’t have is the gateway that international firms can offer to the world outside.” Charlton adds while PRC firms can handle the local law components of inbound and outbound deals with great aplomb, they often lack the experience needed to project manage the biggest M&A deals.

These are deficiencies where domestic firms concede they have some ground to make up, but according to Jun He’s Liu, many of them are making inroads.

“International law firms are ahead of domestic law firms in terms of the work they handle and the role they play on some deals. In the past you could have probably said that it was international firms who played the lead counsel on deals and the Chinese firms who did housekeeping, but this is now changing,” Liu says.

“Chinese firms are playing more important roles and it’s not only [on] outbound deals. We are making good gains on inbound deals.” This is something which appears to be evidenced by the firm’s roles in deals such as Shui On Construction’s US$400m acquisition of China Central Properties, and Sichuan Tengzhong’s acquisition of the Hummer brand from General Motors (GM).

To some extent, instances such as these are still considered out of the ordinary, ccording to Lawrence Liu, the chief legal officer of China Electronic Systems Corporation and chief Lawrence Liu, ACC representative of the Association of Corporate Counsel.

He says that data which the ACC collects suggests that 90% of international legal work in the country for the first part of 2009 50

“The capacity of local law firms to provide highcalibre international advice is increasing by the day.

Lawyers within these firms are technically sound [and] have international experience” robert lee, partner, diaz reus is being done by international firms. This is proof, Liu notes, that “international firms are superior to the domestic [firms].”

However, he does outline measures by which domestic firms can improve their offerings. The secret, Liu says, is increasing their exposure to international law firms operating in the country. “Local law firms are intending to provide more of an international quality of service, which means they will be performing and executing more internationally.”

“They will need to learn from foreign counterparts and then provide good services for clients,” he adds. This is a process which has been occurring over the last two decades.

Danone’s Flavell doesn’t necessarily agree with Liu, instead stating there is a wealth of technically adept lawyers at international and domestic firms for in-house lawyers to choose from.

“I think it is a case of Western companies getting used to working with local firms and vice versa – cultural differences need to be respected and understood on both sides,” he says. “There are very good lawyers in local and international firms and we choose our legal providers based on the individual lawyers, rather than which firm they are with.”

On the qualities he is looking for in his external legal advisors, Flavell says that what he expects from international law firms is no different from what he wants from local firms.

“We want lawyers who take responsibility for their work and have a genuine interest in helping us achieve commercial outcomes,” he states.

“External lawyers should not measure their success by whether they provide a technically correct answer. Rather, they should be proactive in suggesting better ways of doing things and challenge us where appropriate, and

provide technically correct answers in a commercially usable form.”

Liu’s requirements are similar. He says that in addition to providing legal services more efficiently and being more responsive, external lawyers should aim to create an open dialogue between themselves and their inhouse counterparts. “External lawyers [should] provide greater resources to assist on clients’ transactions, and provide some opportunities for in-house teams to do legal work together.”

Talent war

Rivalry for international transactional work isn’t the only area where the competition between international and domestic law firms is apparent. The battle for the best and brightest legal talent is another place where the two models compete.

Whereas in the past it was more common to talk of international law firms poaching legal talent from domestic firms, the situation seems to have reversed since the onset of the financial crisis. More lawyers are now willing to make the move from international firms to their local firms on the mainland.

Why the change? Jun He’s Liu believes it is influenced by the increasing stature of the nation’s top domestic law firms and the often-faster progression opportunities that being part of a domestic firm offers.

“Chinese lawyers employed in international firms have seen that domestic firms handle high-quality work and can offer them a clearer path to partnership,” he notes.

“Because of these factors we have seen a shift in the employment market.

We should not forget also, that the work being handled by the big local firms requires the skills of lawyers in international firms, so at the moment there is a need for their services.”

ISSUE 6.9

Firm Profile ALB special report | China 09 >>

Fangben Law Office

Fangben: From infant to teenager – 10th Birthday

F

angben, founded mainly by the former local law school faculty members in the July 1999, is 10 years old now. From this month on, we are a teenager.

In a nutshell, the last decade has been mainly a learning process while strictly adhering consistently to our core inherent value system of “ethics being essential”.

When celebrating our 10th anniversary, we want to state that we are not necessarily one of the best firms yet in the Greater China region, but surely we are one of the cleanest ones!

Technically, we have learnt a lot in the fields of cross-border M&A, IPR, construction and dispute resolution. This is why Fangben has stood out, being appointed “Recommendatory Legal Service Provider to Expo 2010”, and “Excellent Firm of 2008 Shanghai” by Shanghai’s competent authorities, and especially “Firm

of The Year 2009 of Jiangsu” by ALB. That is why we are recognised as a “Notable Law Firm” in the fields of corporate/M&A and dispute resolution by China Law & Practice.

Practitioners Jade Fan and Winston Jin were awarded as “Top 100 Construction Lawyers of China”; and Fangben has been trusted and retained by numerous multinationals. While revenue always has the first and final say in our industry, we have always been happy with our KPI over the last decade. However, as a teenager, we are fully aware that we have still a lot to learn in how to manage the firm into a more mature PRC firm, rendering first-class niche services to our international clients.

We are fully aware that our partners need to be talented managers too. We have been convinced that putting the lawyers to work together as a team is one of the most difficult jobs for any firm in China.

Ethics is Essential www.legalbusinessonline.com

Failing to manage the firm well into the future will see all of the historic successes and existing ones gone forever with the wind. We receive more than 400 job applications during every yearly recruitment season; some of our young lawyers are growing up; more excitingly, some of our young lawyers will be growing into partners while our founding partners are getting more mature.

We are very thankful to all of the friends who have given us their trust and help. We are committed to work harder and smarter so that we can grow with you, walking along the long –but promising –road lying ahead. Long live Fangben!

Winston Jin, senior attorney and chief partner Fangben Email: chunqing-jin@fangben.com

Winston Jin, Fangben

Website: www.fangben.com Add: Room 503, Shenggao International Building,

No.137 Xianxia Road, Changning District,

Shanghai 200051, PRC Tel: +86(0)21 52069078 Fax +86(0)21 52069071 51

ALB special report | China 09 >>

King & Wood’s Zhang adds that the discomfort being experienced by many international firms at the moment is another factor. “When compared to some international firms in China, domestic law firms are relatively more stable,” he notes. “Few have laid staff off and are either holding steady or looking to expand. This means a lot in the current employment market and is a big positive for lawyers looking to make a career move.”

China’s international firms are stepping up their efforts to attract and retain their talent, so the status quo may be restored sooner, rather than later.

“We as a firm realize the importance of [having] bilingual, internationallyqualified talent on the ground,” says Clifford Chance’s Charlton.

“But we have been looking at ways to address this and [it] involves giving these lawyers exposure to our high-end work, offering them [external] things such as LLM courses, to broaden their experience,” he adds.

Diaz Reus’ Lee cites a similar rationale that is underlying his firm’s growing local practice. “We were only officially licensed to set up in Shanghai in March this year.”

“We are in a building phase at the moment and looking to bring on board PRC lawyers with excellent credentials and technical abilities,” he says.

“Our strategy will be based around exposing these lawyers to the international work they crave and showing them that there is a clear path for progression within our firm.”

Whether or not the exodus of Chinese lawyers away from international law firms and towards the welcoming bosom of domestic firms is a longterm trend or a mere flash in the pan remains to be seen.

It’s clear however, that firms – whether they are international or domestic-based – can’t rely solely on the leverage created by their brand, in what appears to be a rebounding recruitment market.

The Diaz Reus competitive advantage The market for legal services in China is fast becoming saturated. With so many players, it is often difficult to distinguish one firm from another. In this crowded market, however, Diaz Reus stands out. With a global practice, spanning the United States, Latin America, and now the Far East, Diaz Reus’ team of lawyers, solicitors, and professional staff are reshaping the global practice of law. The firm’s China Practice Group Leader, Robert Lee, tells ALB what separates his firms the rest Asian Legal Business: Your firm received its license to establish an office in Shanghai in March of this year. How have things progressed? What is your China strategy?

Robert Lee – Diaz Reus: It’s been extremely busy for us since we set up our Shanghai office. China has long been in our plans and our lawyers were working around the clock on plenty of cross-border disputes and corporate matters like project finance and M&A, so the granting of a license has allowed us to expand by following our international clients and setting up a physical office.

Importantly, the license also gives us access to domestic Chinese clients. Our strategy in this regard is simple: in order to be competitive we have created a law firm that will focus on international practice in emerging markets, of which China is certainly one.

ALB: Your firm has previously stated that it’s the BRIC nations, Brazil, Russia, China and India, which are the focus of the firm’s strategy globally. How does this work?

RL: Over the past few years, we have witnessed a dramatic increase in patterns of trade relations between BRIC countries and interest from western countries, especially the US and Europe, in the growth story occurring in these countries. This interest spans all

52

sectors from FDI, M&A, strategic investments, and natural resources such as energy and natural resources. Similarly, the amount of investments we have seen have no limit, ranging from milti-billion to multi-million dollars. The work generated here already for our firm has been enormous and keeping our offices very busy.

ALB: In your opinion, how has the financial crisis affected your clients’ BRIC interest? Has there been a decline in interest like elsewhere in the world?

RL: The global financial crisis has slowed things down, but the BRIC countries haven’t lost their appeal, especially in terms of activity between BRIC nations. China’s interest in Latin America, especially in terms of M&As, JVs and direct investment in mining and minerals, continues as does the two-way interest between Russia and the PRC in respect to sectors like oil & gas and natural resources—the interest of course is spurred on

by China’s need to find the natural resources to feed its manufacturing and economic engines. For these reasons, China’s interests in the Middle East continues and a relatively newer trend is Chinese interest in resources in Africa. Our clients’ demand for which may well see us open an office in Africa soon.

ALB: What do you feel are Diaz Reus’ competitive strengths? Do you feel your size or niche offering put you at a disadvantage when compared to international firms?

RL: On the contrary, I think our size and our niche focus give us a competitive edge over our rivals. Compare to other firms in China, we may be smaller, but we are certainly more efficient and cost-effective. We are able to make decisions more quickly than larger firms and provide our clients not only high quality service, but round-the-clock attention because of our global coverage. In addition to our offices in Shanghai and our base in Miami, we have a physical presence in Sao Paulo, Bogota, and Caracas. Our size also means our operational costs are lower and this translates to fee savings. We are extremely competitive on rates—and this is something that is vitally important to clients in a global economic downturn, our flexibility here is something that isn’t only liked by our Fortune 500 clients but makes us accessible to Robert Lee, Diaz Reus SMEs as well.

ISSUE 6.9

LONDON

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PARIS

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HONG KONG

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香港

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SINGAPORE

新加坡

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BRISBANE

布里斯本

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MELBOURNE

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PERTH

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墨尔本

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柏斯

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悉尼

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AUCKLAND

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WELLINGTON

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威灵顿

We make the right match.

In-house

Private Practice

Sole Legal Counsel (8 yrs pqe) Hong Kong Take up a Sole Counsel position

Senior Associate HK/SH/BJ This leading international law firm seeks

Banking Legal Advisor (6 yrs pqe) Hong Kong Corporate/commercial banking lawyer with HK qualification is invited to join a famous bank. You should have relevant banking experience earned from a reputable firm or company, along with a good understanding of banking and other financial services and products. The team is highly regarded and candidates need good communication skills including the ability to read and write Chinese. Ref: 8316/CB

Litigation Lawyer (5-10 yrs pqe) Hong Kong A commercial litigator with

handling all of SEA for this technology company. To qualify, candidates need a broad mix of experience in commercial, corporate, compliance, litigation, etc. gained from reputable law firms and MNCs. Additional aspects that will be an advantage are: experience or background in construction law; cross border or regional experience; exposure to US Foreign Corrupt Practices Act. Fluent written and spoken Mandarin and English are imperative. Ref: 8284/CB

Director of Legal (6 yrs pqe) Hong Kong Report to the President and CEO

of this multinational insurance company. As head of Corporate Governance, you will provide legal counsel and handle corporate secretarial matters. This seniorlevel position will provide insight into company strategy and develop creative solutions to satisfy commercial objectives. The role requires HK qualification and excellent written and spoken English and Chinese. Ref: 8300/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 (2-6 yrs exp) Hong Kong Be a part of the rapidly

expanding Asia presence of this global financial institution. The position is a 6-month contract role to handle regional compliance for regulatory and risk matters. Knowledge of asset management, private wealth management, broking and/or investment banking is needed. You will work closely with the sales and products team in HK and Singapore. Someone who is a lawyer or has a compliance background is preferred. Fluent English and Cantonese/Mandarin are required. Ref: 8287/CB

strong candidates to fill senior-level associate/counsel positions in their Hong Kong, Shanghai and/or Beijing offices. Hong Kong qualification is necessary with transaction experience. Ideally, you have a history focusing on listing rules and familiarity of takeover codes. Significant advantage will be given to those coming from Magic Circle or top US firms. Must be mature with good communication skills. Ref: 8322/CB

excellent legal drafting and communication skills is sought to join this strong regional firm. Significant experience is needed in litigious court work. Relevant skills required: good technical ability, client handling and presentation skills.

Proficiency in both English and Chinese languages is a must. Ref: 8289/CB

Senior Associate (5 yrs pqe) Hong Kong The international capital markets group of this famous law firm needs a US securities lawyer. Must have experience with US SEC-registered equity and debt offerings and be able to give ongoing advice and assistance on Exchange Act reports. You should have native Mandarin language skills and be a team leader. Ref: 8286/CB

Corporate Associate (2-4 yrs pqe) Hong Kong Stellar candidates are sought to join the corporate team in this thriving office of a leading US law firm. Needed: general corporate exposure and those with IPO and/or M&A experience are favored. You must have Hong Kong qualification. Any exposure to PRC transactions will be a benefit. Chinese language skills are important.

Ref: 8166/CB Junior Corporate Associate (2 yrs pqe) Hong Kong Newly created role to work within an exciting and friendly corporate team at this notable international firm seeing record growth in the region. Talented lawyers with a mix of general corporate experience will be considered. Those with IPO and M&A experience are highly favored. Fluent Mandarin is essential along with Hong Kong qualification. Ref: 8309/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

HONG KONG Tel: (852) 2520 1168 Fax: (852) 2865 0925 Email: hughes@hughes-castell.com.hk SINGAPORE Tel: (65) 6220 2722 Fax: (65) 6220 7112 Email: hughes@hughes-castell.com.sg

www.hughescastell.com

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