ISSUE 7.5
The fee gap
Can international firms still charge double?
中外法律服务费率差异‘鸿沟’能否持续？
ALB Special Report: Chengdu 2010 Rich pickings in Sichuan
成都律所中高端业务发展逐步加速
China’s most improved in-house team? Why GCL-Poly’s legal team is ahead of the crowd
CHINA
保利协鑫公司法务团队专访
Simply
the best! 2010年度ALB中国法律大奖获奖名单揭晓 All the winners of 2010 ALB China Law Awards revealed
n DEALS ROUNDUP n UK, US REPORTS n LATERAL MOVES n APPOINTMENTS n LATEST CAPITAL MARKETS DATA
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News | editorial >>
Wisdom: Knowing what to overlook
T
he ascendancy of PRC firms was widely anticipated: the rapidity of it was not. Local firms are now powerful, financially strong, and, in the case of the top-notch firms, already expanding globally. Their increasing market strength – not only in terms of winning mandates from inbound investors and foreign companies but also attracting top talent – has put greater pressure on their foreign counterparts. The key question this gives rise to is whether any international firm can really grow to a substantial size in China given they have to contend with now not only restrictions on practice but also increasingly stiff competition from PRC firms for cross-border deals. Inseparable from the whole question is the fact that the fee gap between international and local firms is creating a natural market segmentation. The days of international firms trying to be ‘all things to all people’, and receiving mandates from their foreign clients as a matter of course, are long over. In today’s market they have to focus on their core strengths. “One of the main challenges for the development of international firms in the region is maintaining focus. Even though the competition is intensifying, the problem that a lot of them face is that they tend to lose focus and start chasing opportunities which don’t make a lot of sense,” said Arthur Mok, the former managing partner of Hogan & Hartson in Shanghai. Mok recently traded in his position at the newly merged Hogan Lovells for partnership in the smaller US firm Ropes & Gray. The rationale, he said, was that he could stay focused on his own practice, which is in the private equity, M&A and capital markets areas. As the pioneering 19th century American philosopher William James advised, “the art of being wise is the art of knowing what to overlook”. International firms’ prospects in China may be far from gloomy, but only if they manage to move up the value chain ahead of their PRC counterparts and employ a laser-like focus on what they should and should not offer to their new and existing clients.
IN THE FIRST PERSON “Fund establishment exemplifies the current trend for JVs in the PRC real estate market and the growing influence of the asset management businesses of the PRC banks” Anthony Webster, Maples and Calder (p6)
“We do value external counsel’s extensive expertise and knowledge in many other areas of the law. Their logistics, knowhow, precedents and experience in solving similar legal issues are invaluable to us” Susan Wu, GCL Poly (p38)
“Most US firms are moving away from commodity work such as FDI, because the local firms take over that space. They can do that work more efficiently and at a more affordable rate” David Wang, Paul Hastings (p43)
The days of international firms trying to be ‘all things to all people’, and receiving mandates from their foreign clients as a matter of course, are long over www.legalbusinessonline.com
CHINA
1
CONTENTS >>
contents 26 COVER STORY
38
2010 ALB China Law Awards A full rundown of the winners from this year’s ceremony in Shanghai, featuring the very best performers the legal market has to offer
ANALYSIS
FEATURES
8
36 In-house Perspective: GCL-Poly Through a series of landmark transactions in recent years, GCL-Poly has become one of the largest players in the world’s solar power industry. ALB finds out how the in-house legal team’s functions have transformed it into a high-value-add part of the business
The fee gap: can international firms still charge double? While local firms are moving even closer to their international counterparts in terms of breadth and quality of service, the difference in fees between the two remains wide – and unsustainable. ALB finds out whether the market is on the brink of profound change
10 PRC partnership appraisals:time to lift the bar Without a framework of checks and balances, law firms will end up strong-performing partners resenting their weaker-performing counterparts. This often leads to strong performers departing for firms where they can receive rewards that correspond more closely with their relative contributions
40 US firms in China The global downturn didn’t stop more US firms from expanding by opening new offices in China and reaffirming the commitment to this market. With the continuing recovery and growth of China’s economy, ALB asks leading US firms what the year ahead holds for them?
46 ALB Special Report: Chengdu 2010 As Chengdu proceeds with its ambitious plans to become a commercial and financial centre for the South-west, local firms are gearing up for an expected surge in demand from the middle and upper market segments. An increasing influx of capital and investments into the region has also attracted outside interest in this nascent legal market
REGULARS 13 • • • •
News King & Wood lures CC’s Beijing chief Jun He’s triple whammy to new US office Pressure from large firms forces Kingfield to merge with Dacheng Zhonglun W&D becomes third Beijing firm in Taiyuan
The Updates section of ALB China is sponsored by the following firms: Beijing editor
Arbitration editor Guantao is a leading PRC firm with core businesses in capital markets, M&A, real estate, restructuring & insolvency, and energy & resources. With a team of nearly 150 lawyers nationwide, Guantao provides advice of high quality to clients home and abroad. Headquartered in Beijing, it has offices in Shanghai, Shenzhen, Xi’an, Dalian, Chengdu, Ji’nan, Xiamen, Tianjin and Hong Kong.
SIAC is an independent, not-for-profit organisation, providing the international business community with a neutral, efficient and reliable dispute resolution institution in Asia. Most of the parties involved are non-Singapore parties; panel arbitrators are from all over the world; various contracts opt for non-Singapore law as the substantive laws; secretariats are multinational and multi-bilingual; and the arbitral awards are enforceable in over 140 signatory countries to the New York Convention. International tax editor
Singapore editor Loo & Partners was founded in 1985 as a niche practice, handling mainly banking, corporate, securities and commercial work. With the support of a comprehensive network of correspondent law firms, the firm serves its clients in their regional needs. The firm has been regularly noted for its IPO, M&A and general corporate work. Investment into Malaysia
AzureTax Ltd provides transparent strategic and ethical tax advice. Through our professional corporate and International, tax advisory and trustee services your tax plan is comprehensively implemented. Our tax advice provides independent innovative and rigorous solutions which deliver results and long-term accountability. Qualified UK, US, Hong Kong and PRC tax advisors. Tax filings for UK, US and Hong Kong Tax returns.
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ISSUE 7.5
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NEWS | deals >>
deals in brief
| M&A |
| equity MARKET |
►►Sinopec–Syncrude Canada acquisition
►►Shenzhen Hepalink Pharmaceutical IPO 海普瑞药业股份深圳首次上市
中石化收购加拿大 Syncrude Value: US$4.6bn
Firm: Osler, Hoskin & Harcourt Lead lawyers: Jack Thrasher, Peter Glossop Client: Syncrude Canada Firm: Blake, Cassels & Graydon Lead lawyer: Michael Laffin Client: Sinopec • Largest Asian oil company investment in Canada's oil sands to date. Led by Sinopec’s in-house team, managed by general counsel Shao Jingyang • Blakes previously worked with Sinopec with their first foray into Canada with the Northern Lights Project • In-house counsels at ConocoPhillips Canada, including vice presidentcorporate services and chief counsel Graham Vanhegan and Angela Avery, also worked on the deal
| M&A |
| M&A |
HEADLINE DEAL
Value: US$1.6bn
Firm: Fangda Partners Client: Charles River Firm: Davis Polk Lead lawyers: Michael Davis, Howard Zhang, Richard Truesdell Jr, Michael Mollerus, Joseph Hadley, Paul Bartel II Client: Charles River Firm: Commerce & Finance Client: Wuxi
Howard Zhang Davis Polk
Firm: O’Melveny & Myers Lead lawyers: Kurt Berney,
4
Lawrence Sussman, Nathan Bush Client: Wuxi Firm: Cravath Swaine Lead lawyers: Faiza Saeed, Sarkis Jebejian Client: Wuxi • Transaction represents one of the largest foreign takeovers of a Chinese company • O’Melveny previously advised target on its US$55m financing and US$40m convertible notes offering, as well as its US$212m IPO on NYSE in 2007 • Davis Polk advised Charles River on a US$1.25bn financing commitment from JPMorgan Chase and Bank of America Merrill Lynch in this deal • Transaction is subject to stockholder and regulatory approvals
Firm: Zhong Lun Lead lawyers: Su Min, Xu Zhigang, Zou Xiaodong Client: Issuer • Being the only Chinese company with approval from the US Food and Drug Administration to export finished heparin, Hepalink is the world’s biggest maker of the bloodthinner • Hepalink’s offering is the largest IPO seen on Shenzhen stock exchange • Zhong Lun has been Hepalink’s legal advisor for a decade
| equity MARKET | ►►New Century Shipbuilding Singapore IPO 新世纪集团新加坡上市 Value: US$731m
Firm: Jingtian & Gongcheng Client: Issuer
►►Shougang Group and Deutsche Bank–Huaxia Bank stake acquisition 首钢成为华夏第一大股东
Firm: WongPartnership Lead lawyers: Raymond Tong, Tok Boon Sheng Client: Issuer
Firm: Concord & Partners Client: Huaxia Bank
Firm: O’Melveny & Myers Client: Issuer
Value: US$3bn
►► Charles River–Wuxi PharmaTech acquisition Charles River 16亿美元收 购无锡药明康德
Value: US$878m
Firm: Freshfields Client: Shougang Group • Deal makes Shougang the largest shareholder of Huaxia, taking over Deutsche Bank • Freshfields is long-term legal advisor to Shougang Group
Firm: Allen & Overy Client: Issuer
Raymond Tong WongPartnership
Firm: Commerce & Finance Client: Joint bookrunners • Will be biggest IPO by a Chinese
“Asia is a strategic growth area for the CRO sector. Given that it can take over a billion dollars and ten or more years to develop new drugs, you are seeing global drug companies move some of their R&D operations to Asia ... in order to reduce both costs and the time required to bring new drugs to market” Raymond Tong, WongPartnership ISSUE 7.5
NEWS | deals >>
company to be listed on the SGX; Singapore's second-biggest listing since CapitaMalls Asia
| equity MARKET | ►► L'Occitane Hong Kong IPO 法国L'Occitane赴香港上市 Value: US$708m
Firm: Zhong Lun Lead lawyers: Zhang Xuebing, Gu Zhengping Client: Issuer Firm: Freshfields Client: Issuer Firm: Arendt & Medernach Client: Issuer
Zhang Xuebing Zhong Lun
Firm: Linklaters Client: Underwriters • Issuer becomes the first French company to list on HKSE this year
| DEBT MARKET | ►► Agile Property high yield notes offering 雅居乐发行保证优先票 Value: US$650m
Firm: Jingtian & Gongcheng Client: Issuer Firm: Conyers Dill & Pearman Client: Issuer Firm: Sidley Austin Client: Issuer Firm: Davis Polk Lead lawyers: William Barron, John Paton Client: Initial purchasers Firm: Commerce & Finance Client: Initial purchasers • Size of offering was increased from originally William Barron planned Davis Polk US$500m • Sidley Austin is long-term legal advisor to Agile, representing the company in its IPO and debut debt offering in 2006 www.legalbusinessonline.com
►► YOUR MONTH AT A GLANCE Firm
Jurisdiction
Deal name
AllBright Allen & Overy
China China/Singapore China/US China/Mongolia
Zhejiang Narada Power Shenzhen IPO New Century Shipbuilding Singapore IPO International Paper Company–SCA acquisition Solartech Mongolian mine acquisition
Anderson & Anderson Arendt & Medernach China/Hong Kong Baker & McKenzie China/US/Hong Kong China/Hong Kong Blake, Cassels & China/Canada Graydon Chung Lawrence & China/Mongolia Associates Clifford Chance China/Hong Kong China/US China/Singapore Commerce & Finance China/US China/Singapore China/US Concord & Partners China/Germany Conyers Dill China/US Pearman China/Hong Kong China/Singapore Cravath Swaine China/US Davis Polk China/US China/US DLA Piper China/US China/Australia Fangda Partners China/US China/Singapore Freshfields China/Hong Kong China/US China/Germany Fried Frank China/Hong Kong Gide Loyrette Nouel China/France Global Law Office China/US Grandall Legal China Group Herbert Smith China/Mongolia Hopgood Ganim China/Australia Jincheng Tongda China/Hong Kong & Neal Jingtian & China/Singapore Gongcheng China/Hong Kong China/US China/Singapore China/US King & Wood China China/Singapore Linklaters China/Hong Kong China/Hong Kong China/Singapore Loeb & Loeb China/US Maples and Calder China/Hong Kong Mayer Brown China/US/Hong Kong O’Melveny & Myers China/US China/Singapore Osler, Hoskin & China/Canada Harcourt Rajah & Tann China/Singapore Sidley Austin China/US Skadden China/US Stamford Law China/Singapore Sullivan & Cromwell China/US/Hong Kong Walkers China/Mongolia WongPartnership China/Singapore Woo Kwan Lee & Lo China/Hong Kong Yuan Tai Law Offices China/Singapore Zhong Lun China
L'Occitane Hong Kong IPO ION Geophysical Corporation–BGP stock sales and JV China Overseas Land & Investment and ICBC JV and fund establishment Sinopec–Syncrude Canada acquisition
Value (US$m) 287 731 200 192
Deal type Equity market Equity market M&A M&A
708 400 250 4,600
Equity market Joint venture Joint venture M&A
Solartech Mongolian mine acquisition
192 M&A
New World Development bond issuance International Paper Company–SCA acquisition Fufeng convertible bonds issuance
250 Debt market 200 M&A 120 Equity market
Charles River–Wuxi PharmaTech acquisition New Century Shipbuilding Singapore IPO Agile Property high yield notes offering Shougang Group and Deutsche Bank–Huaxia Bank stake acquisition Agile Property high yield notes offering New World Development bond issuance Fufeng convertible bonds issuance Charles River–Wuxi PharmaTech acquisition Charles River–Wuxi PharmaTech acquisition Agile Property high yield notes offering China Hydroelectric Corporation IPO China Coal Import & Export Company–MetroCoal Limited JV Charles River–Wuxi PharmaTech acquisition China Minzhong IPO L’Occitane Hong Kong IPO Tencent Holdings–Digital Sky Technologies acquisition Shougang Group and Deutsche Bank–Huaxia Bank stake acquisition Asian Citrus Holdings top-up placement SEMMARIS–Shenzhen Agricultural JV China Hydroelectric Corporation IPO Hainan Meilan International Airport Company–HNA Airport Holding Company acquisition Solartech Mongolian mine acquisition China Coal Import & Export Company–MetroCoal Limited JV Lansen Pharma Hong Kong IPO New Century Shipbuilding Singapore IPO L'Occitane Hong Kong IPO Agile Property high yield notes offering Fufeng convertible bonds issuance China Hydroelectric Corporation IPO China Fiberglass–Jushi Group acquisition Fufeng convertible bonds issuance L'Occitane Hong Kong IPO New World Development bond issuance Fufeng convertible bonds issuance China Hydroelectric Corporation IPO China Overseas Land & Investment and ICBC JV and fund establishment ION Geophysical Corporation–BGP stock sales and JV Charles River–Wuxi PharmaTech acquisition New Century Shipbuilding Singapore IPO Sinopec–Syncrude Canada acquisition China Minzhong IPO Agile Property high yield notes offering Tencent Holdings–Digital Sky Technologies acquisition China Minzhong IPO ION Geophysical Corporation–BGP stock sales and JV Solartech Mongolian mine acquisition New Century Shipbuilding Singapore IPO New World Development bond issuance China Minzhong IPO Shenzhen Hepalink IPO
1,600 731 650 3,000 650 250 120 1,600 1,600 650 96 30 1,600 169 708 300 3,000 70 Undisc. 96 322
M&A Equity market Debt market M&A Debt market Debt market Equity market M&A M&A Debt market Equity market Joint venture M&A Equity market Equity market M&A M&A Equity market Joint venture Equity market M&A
192 M&A 30 Joint venture 137 Equity market 731 708 650 120 96 430 120 708 250 120 96 250 400 1,600 731 4,600
Equity market Equity market Debt market Equity market Equity market M&A Equity market Equity market Debt market Equity market Equity market Joint venture Joint venture M&A Equity market M&A
169 650 300 169 400 192 731 250 169 878
Equity market Debt market M&A Equity market Joint venture M&A Equity market Debt market Equity market Equity market
Does your firm’s deal information appear in this table? Please contact
alb@keymedia.com.au
61 2 8437 4700
5
NEWS | deals >>
| JOINT VENTURE | ►► ION Geophysical Corporation–BGP stock sales and JV ION 和BGP 宣布成立陆上 地震技术合资公司 Value: US$400m
Firm: Mayer Brown Lead lawyers: Marc Folladori, Tristan Propst, Simeon Kriesberg, Scott Perlman, Martin Robertson, Ian Lewis Client: ION Firm: Baker & McKenzie Client: ION Martin Robertson Mayer Brown Firm: Sullivan & Cromwell Lead lawyer: Chun Wei Client: BGP
• BGP is a subsidiary of China National Petroleum Corporation • Mayer Brown team gave legal advice on a wide range of issues regarding both onshore and offshore arrangements under general corporate, IP, finance, PRC and US regulatory and anti-trust laws
| M&A | ►► Hainan Meilan International Airport Company–HNA Airport Holding Company acquisition 美兰机场收购整合海南机场 Value: US$322m
Firm: Grandall Client: Hainan Meilan International • Hainan Meilan International Airport Company acquires HNA Airport Holding’s 54.5% stake from HNA Group and Kingward Investment • Grandall is Hainan Meilan’s long term legal advisor and has represented the firm for more than ten years
6
| M&A | ►► Tencent Holdings– Digital Sky Technologies acquisition 腾讯将收购俄投资公司 Digital Sky 10%股权 Value: US$300m
Firm: Freshfields Lead lawyers: Teresa Ko, Calvin Lai Client: Tencent Holdings Firm: Skaddens Client: Financial advisor • This is one of the largest Chinese outbound investment deals in the Russian and Eastern European markets • The deal involved close cooperation by Freshfields’ Hong Kong and Moscow offices
| CAPITAL MARKETS | ►► Zhejiang Narada Power Source Shenzhen IPO 南都电源深圳上市
Value: US$430m Firm: King & Wood Client: China Fiberglass • China Fiberglass acquires 49% stake in Jushi Group from China Building Material and other consortiums
| DEBT MARKET | ►►New World Development bond issuance 新世界发展发行债券 Value: US$250m
Firm: Linklaters Client: Issuer Firm: Woo Kwan Lee & Lo Client: Issuer Firm: Conyers Dill & Pearman Client: Issuer Firm: Clifford Chance Lead lawyers: Connie Heng Client: Joint lead managers • issue was a tap of the existing US$500m bonds issued in February 2010
Client: JV partners • China Overseas Land & Investment established the US$250m Harmony China Real Estate Fund with co-investors ICBC International Investment Management and a subsidiary of China Overseas Holdings • In connection with the establishment of the fund, the parties also agreed to set up JV entities to manage and administer the affairs • Baker & McKenzie’s Hong Kong office acted as lead onshore counsel to the two JV parties
“Fund establishment exemplifies the current trend for JVs in the PRC real estate market and the growing influence of the asset management businesses of the PRC banks” Anthony Webster, Maples and Calder
Value: US$287m
Firm: AllBright Lead lawyer: Zhang Xiaohong Client: Issuer • Zhejiang Narada Power Source principally engages in the research, development, manufacturing and sale of chemical power sources and new energy storage products
| M&A | ►► China Fiberglass–Jushi Group acquisition 中国玻纤全资控股巨石集团
| JOINT VENTURE |
| M&A |
►►China Overseas Land & Investment and ICBC JV and fund establishment 中国海外发展公司与ICBC合 资成立房地产基金
►►International Paper Company–SCA acquisition 国际纸业2亿美元收购SCA 亚洲包装业务
Value: US$250m
Firm: Maples and Calder Lead lawyer: Anthony Webster Client: Fund and sponsors Firm: Baker & McKenzie Lead lawyers: Jason Ng
Value: US$200m
Firm: Clifford Chance Lead lawyers: Amy Ho Client: SCA Firm: Allen & Overy Client: International Paper Company • International Paper expects to
ISSUE 7.5
NEWS | deals >>
complete the purchase in the second quarter of 2010, subject to regulatory approval
| CAPITAL MARKETS |
| equity MARKET |
| JOINT VENTURE |
►► Lansen Pharma Hong Kong IPO 朗生医药香港上市
►►China Hydroelectric Corporation IPO 中华水电美国上市
►►SEMMARIS– Shenzhen Agricultural JV 法国兰吉斯深圳成立合资公司
►► Solartech Mongolian mine acquisition 荣盛科技完成蒙古铜金银矿 大收购
Firm: Jincheng Tongda & Neal Lead lawyers: Zheng Xiaodong, Liu Yinhong Client: Issuer
Firm: DLA Piper Lead lawyers: Jonathan Klein, Gene Buttrill Client: Issuer
Firm: Gide Loyrette Lead lawyer: David Boitout Client: Semmaris
Firm: Herbert Smith Lead lawyer: Tommy Tong Client: Solartech
• Lansen is principally engaged in the development, production and sale of specialty prescription Western pharmaceuticals for the treatment of autoimmune rheumatic diseases in the PRC
Firm: Global Client: Issuer
| M&A |
Value: US$192m
Firm: Anderson & Anderson Client: Solartech
Tommy Tong Herbert Smith
Firm: Chung Lawrence & Associates Client: Mongolian mines Firm: Walkers Client: Mongolian mines • Deal marks the first copper mining acquisition in Mongolia by a listed company
Value: US$137m
| DEBT MARKET | ►► Fufeng convertible bonds issuance 阜丰集团发行可转债 Value: US$120m
Firm: King & Wood Lead lawyers: Zhao Xiaohong, Mu Peng Client: Fufeng
| CAPITAL MARKETS | ►► China Minzhong IPO 中国闽中食品新加坡IPO
Firm: Conyers Dill & Pearman Client: Fufeng
Firm: Fangda Partners Client: Issuer Firm: Rajah & Tann Lead lawyers: Chia Kim Huat, Howard Cheam, Chen Xi, Benjamin Beh Client: Issuer Firm: Stamford Law Lead lawyer: Soh Chun Bin Client: Sole bookrunner Firm: Yuan Tai Law Offices Lead lawyer: Wang Daofu Client: Sole bookrunner • Deal is one of the largest S-Chip IPOs on the SGX since sub-prime crisis in 2008 • China Minzhong is a PRC-based integrated vegetables processor and is the first of its type to list on the Main Board of the Singapore Exchange
www.legalbusinessonline.com
Firm: Jingtian & Gongcheng Client: Underwriters Firm: Loeb & Loeb Client: Underwriters • This issue is the first listing of a PRC-based hydroelectric company on the NYSE
| equity MARKET | ►►Asian Citrus Holdings topup placement 亚洲果业控股增股 Value: US$70m
Firm: Clifford Chance Lead lawyers: Connie Heng, Joan Janssen Client: Fufeng
Value: US$169m
Value: US$96m
Firm: Linklaters Client: Underwriters Firm: Jingtian & Gongcheng Client: Underwriters • Convertible bonds are listed on the main board of the Singapore Exchange Zhao Xiaohong King & Wood • King & Wood is Fufeng’s longterm legal counsel and has been representing the issuer since 2004, facilitating its IPO in 2007
Firm: Fried Frank Lead lawyers: Victoria Lloyd, Joshua Wechsler Client: Joint placing agents • Ordinary shares of Asian Citrus are listed on the HKSE, the AIM and the PLUS Market
| JOINT VENTURE | ►►China Coal Import & Export Company– MetroCoal Limited JV Metrocoal与中企签署 3000万元协议 Value: US$30m
Firm: DLA Piper Lead lawyer: Wan Li, Eugene Fung Client: CCIEC Firm: Hopgood Ganim Client: MetroCoal • CCIEC has acquired a 51% interest in MetroCoal’s Columboola coal exploration acreage in the Surat Basin, Queensland for US$30m
Value: undisc.
• The JV gives SEMMARIS entry into the Chinese wholesale food market for the first time • Gide is a long-standing legal counsel David Boitout Gide Loyrette to the client, having advised Semmaris on corporate restructuring in France and on some others international development of their activities
“JV projects are and will continue to be a suitable investment scheme for projects addressing the Chinese market and in particular for the entry in a new market where having a Chinese partner knowing such market is definitively an advantage” David Boitout, Gide Loyrette Nouel
CORRECTION# In the 'Going Boutique' news analysis on pg 13 in ALB China issue 7.4, the following information was incorrectly reported. Junyi law office did not merge with Jun He in 2007. In fact, Junyi had advanced merger talks with Wang Yadong (managing partner of the former Runbo law firm) when some of the Junyi partners decided to join Jun He. Runbo then merged with Junyi resulting in Run Ming Law Office, which is headed by executive partners Liu Yi (former Junyi managing partner) and Wang Yadong. ALB regrets the error.
7
NEWS | analysis >>
Analysis >>
The fee gap:
Can international firms still charge double?
While local firms are moving even closer towards their international counterparts in terms of breadth and quality of service, the difference in fees between the two remains wide. ALB finds out how sustainable this is, and whether the market is on the brink of profound change in this regard
T
he findings of the 2010 ALB China In-house Survey have sent out a positive message to law firms. According to the results, only 17% of the polled legal departments stated their budgets for legal spend on external counsel have contracted compared to last year, and 49% have seen an increase in 2010 budgets. However, clients and general counsels are under increasing pressure to manage the cost of external counsel, even if their budgets have been increased. “The higher hourly rate charged by an external counsel means its client would receive less legal support with the same budget. So we have to watch our external legal spending very carefully and ensure we have enough resources and appropriate support to meet the company’s legal needs,” said a Shanghai-based director of legal affairs in a US-headquartered Fortune Global 500 company. The legal director also addressed the question of the price/value gap that exists in the services provided by international firms. “Some international firms’ charge-out rates (for partners in China) are too expensive even to top multinational companies. Their topranked professional service and quality advice are desirable to clients, but the additional value delivered is not enough to justify the additional cost,” he said.
8
Price alone won’t make the cut
As companies become more proficient at managing risk and build up their own in-house legal function, they stop outsourcing as a matter of course and instead engage external counsel only in particular circumstances. Usually these circumstances require high quality work, specialised expertise, and quick turnaround times. Firms are therefore getting increasingly less likely to win mandates on the basis of price along. It is the ability to provide international-standard legal services and lower-than –internationalstandard prices that constitutes a new winning proposition. In the middle market, where mandates generally involve less significant offshore elements and can be handled by either PRC or international firms, leading domestic players currently enjoy an advantage. “A good number of domestic firms are catching up with their international counterparts and are taking a more dominant role in servicing foreign companies in China – providing not only general corporate services but also corporate finance and transactional advice,” said Willie Uy, director of legal affairs of Hong Kong-listed property developer Shui On Land. “They are able to offer legal services that are compatible to services provided by many
►► The hourly rate differences between international firms and PRC firms Position Partners at toptier firms Associates at toptier firms Partners at midtier firms Associates at midtier firms
International PRC hourly hourly rate (US$) rate (US$) 700-1,100 350-550 350-500
150-400
450-750
200-350
200-350
50-250
Note: Rates are for general indication only; ‘PRC firms’ in the table refers to firms that primarily focus on corporate and transactional work
international firms, whilst keeping their fee levels at a more reasonable level.” In addition, Uy noted, these PRC firms have adopted the international model of delivering services through a team-based approach, which has added an additional degree of comfort for their foreign clients.
Partner moves: a market barometer
In recent months, a growing number of partners, not only Chinese but also foreign lawyers, have left international firms to join local partnerships. These moves are an important indicator of the rise of PRC firms and in some cases represent a direct response to clients’ calls for more reasonable fees. Former partner at Paul Hastings’ Beijing office Lin Huawei joined Global ISSUE 7.5
NEWS | analysis >>
Law Firm as a partner in March this year. Lin, who focuses on M&A, PE and FDI matters, explained that his choice was due to a preference for charging more reasonable fees. “Clients are more aware of the levels of legal fees these days. Domestic and international firms charge very different rates and, given that, local firms are becoming the ‘go to’ firms, especially when they are increasingly capable of providing international business oriented services and advice,” Lin said. Jun He is another firm that has recently secured the services of former partners at international firms. In early May, it added James Zhu and Zoe Wang, previously the Beijing and Shanghai managing partners of US firm Perkins Coie, to its partner ranks. Although partner lateral hires from international counterparts were not unheard of in the past, Jun He’s senior partner David Liu said the necessity of it for PRC firms and the willingness of international partners to join local firms has never been greater. “From the partners’ point of view, practising on a strong local platform is an increasingly attractive option,” said Liu. “At a local firm, they are able to leverage the firm’s extensive local resources and local legal support to provide higher quality and a wider range of services to clients. Equally importantly, they can offer a more attractive value proposition to existing and prospective clients, as the cost base in even the very top-tier PRC firms is still noticeably lower than that of international firms.” Having more international lawyers will inevitably bolster PRC firms’ international capabilities and help close
the remaining gap between what local and foreign firms can offer in China.
Further evolution
International firms will undoubtedly feel more pressure from leading PRC firms, but their prospects are far from gloomy if they manage to move up the value chain. “With economic growth and the maturing of the local legal profession, local firms should be dominant in the local market. Foreign firms will play a role that’s similar to the role they play in other markets – handling high-end work that has significant cross-border elements, as they have lawyers who have offshore capability and local understanding,” said Robert Lewis, senior international legal consultant of AllBright in Beijing. “In the next five to ten years, the Beijing and Shanghai offices of international firms have to evolve to be able to provide the type of services which is currently provided out of their Hong Kong offices. They will have to improve their overall positioning and deliver that nature and quality of crossborder offshore services,” he added. The fee gap between top-tier PRC firms and international firms that are middle-market oriented will close over time. “As more and more PRC firms are recruiting internationally trained and qualified lawyers, their prices will gradually move towards international levels. Eventually, there will be less of a difference,” said Todd Bissett, a partner at US firm Sheppard Mullin’s Shanghai office. “One interesting question in the legal market today is about whether or not PRC firms are going to be constrained in going after cross-border work by their own price approach.”
It certainly works from a client perspective if a firm can provide great service at a low price, but to be able to provide that great service PRC firms need to have not only partners but also other legal professions, especially associates, who are capable of delivering. “Most of these high-calibre lawyers are expecting to be paid at international levels. The real question ►►Robert Lewis sets a prime example
Among a long line of lawyers leaving international firms to join local firms, Lovells’ former Beijing managing partner Robert Lewis is the most senior – he has nearly 20 years of China practice experience in private practice and inhouse. He joined AllBright as a senior international legal consultant in Beijing on 1 May 2010. Among other reasons, Lewis has identified the fee differentials as an important factor in his decision to move. “The cost base and fee structure of international firms have created a natural market segmentation affecting their opportunities for growth and expansion in China. In certain important segments of the market, they would never be able to achieve the same scale and coverage as local firms,” said Lewis. “The only way to reduce charge-out rates is to have a lower cost base. Joining AllBright enables me to offer a new value proposition for both foreign and domestic clients – providing an international standard of service through a national network at a local price.” At AllBright, Lewis’ services will be available at a new hourly rate of RMB3,200 – fully 45% less than his Lovells rate and equivalent to the rates charged by local partners in other leading domestic law firms. The lower end of the range of hourly rates for his new AllBright team will be RMB800, and in appropriate cases they can offer a blended hourly rate of RMB2,000.
►► Exodus: Counsel and partners of international firms joining PRC firms (January–May 2010) Name Robert Lewis Richard Lee Louis Meng Lin Huawei David Fu William Lu James Zhu Zoe Wang Steven Cui Rupert Li Gao Yan Scott Yu
From Lovells Simmons & Simmons K&L Gates Paul Hastings Shearman & Sterling Allen & Overy Perkins Coie Perkins Coie Jones Day Clifford Chance Jones Day Jones Day
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To AllBright AllBright AllBright Global Global Jade & Fountain Jun He Jun He Jun He King & Wood Zhong Lun Zhong Lun
Practice Corporate Corporate Corporate M&A, PE Corporate, FDI TMT IP IP IP Capital markets Energy Corporate finance
“In the next five to ten years, the Beijing and Shanghai offices of international firms have to evolve to be able to provide the type of services which is currently provided out of their Hong Kong offices” Robert Lewis
AllBright
9
NEWS | analysis >>
is whether PRC firms are able to have the economies of scale in high-quality work to achieve that,” said Todd. As the market continues to evolve, many industry participants envision that PRC firms and international firms should and will become equal partners who often co-counsel on a transaction for the same client. “For the most part, international and PRC firms are still selling different
products, focusing on onshore and offshore aspects respectively. In many transactions, clients will continue to need international counsels. PRC firms will always have advantages in the local market and be the primary gatekeepers to Chinese transactions. But the needs of the clients for international firms are not going to go away simply because of a price differential,” said Todd. ALB
中外律所费率差异鸿沟’能否持续？ 2 010年《亚洲法律杂志（中国版）》企业法律 顾问调查的结果对法律服务界发出了一个积极 信号。调查结果显示，在接受调查的公司法务部门 中，仅17%表示聘用外部律师的法律开支预算比 上年缩减，而 49%认为2010年的预算有所增加。 然而，即使在预算增加的情况下，广大公司以及总 法律顾问面临的控制外部律师成本的压力未减反增。 一家总部设在美国的全球500强公司的上海总法律顾问 表示：“如果外部律师收取的小时费率上涨，就意味着 在相同的预算下客户获得的法律服务量将会减少。所 以我们要极其审慎地注意我们的外部法律开支，确保 有足够的资源和充分的服务来满足公司的法律需求。” 这位总法律顾问还提出国际律所提供的服务存在价 格/价值差的问题。“一些国际律所的收费实在太贵， 即使是顶尖跨国公司亦觉得费用不菲。国际律所提供 的一流专业服务和优质法律意见固然对客户具有很大 的吸引力，但他们提供服务的附加值能否真正的与他 们的高收费标准相对应仍然是一个关键问题。”
一家律所。五月初，美国博钦律师事务所北京和上 海前管理合伙人朱坚和王朝晖相继加盟该所担任合 伙人。尽管从国际律所横向招募合伙人在以前也时 有发生，但君合资深合伙人刘大力表示现在招募有 丰富国际经验的资深律师对于顶尖中国律所极其必 要，同时一些国际律所的合伙人对于加盟国内律所 的意愿较以前更加强烈。 刘律师称：“从合伙人的角度来看，在实力雄厚的 本地平台执业是个越来越具吸引力的选择。在国内 律所，他们能利用广泛的本地资源，以及律师和研 究团队的强大支持，为客户提供更加优质及范围更 广的服务。同样重要的是，他们能为现有客户和目 标客户提供更具吸引力的价值主张，因为中国顶尖 律所的收费仍然明显低于国际律所。” 更多国际律师的加盟势必将增强中国律所的国际 实力，并进一步弥合中国本土律所与外国律所提供 的服务的差距。
单凭低价不足以获得成功
毫无疑问，国际律师事务所将感受到来自顶级中国 律师事务所的压力，但只要他们努力提升价值链， 他们的前景还远远谈不上悲观。 锦天城律师事务所北京高级国际法律顾问吕立山 先生说道：“随着经济增长和本土法律行业日渐成 熟，中国律所理应在中国市场占据重要地位。而 国外律所应在中国扮演一个与他们在其他地方相似 的角色，即处理带有显著跨境要素的高端业务，因 为他们兼备处理境外国际业务的能力和对本土市场 的了解。”他还补充道：“在未来五到十年内，国际 所的北京和上海代表处必须适时改变，以提供其香 港办公室目前所能提供的服务类型。他们须提升总 体定位，注重为中国市场提供优质的境外法律咨 询和服务。” 就中端市场而言，一流的中国律所与国际律所之 间的收费差距不久将拉近。美国盛智律师事务所上 海办事处合伙人Todd Bissett表示：“由于越来越多 的中国律所招募受过国际培训的合资格律师，因此 他们的收费标准将逐渐向国际标准看齐。中国律所 与国际律所的收费最终将相差无几。如今法律市场 的一个值得寻思的问题是，当两者的价格接近时， 中国律所在设法招徕跨境工作后是否将受到限制。” 客户认为，一家能以低价提供卓越服务的律所定 当所向披靡，但能够提供卓越服务，中国律所需要 的不仅是合伙人，还需要其他司法界人士，特别是 有能力提供卓越服务的律师。“大多数高水平的律 师期望的薪酬水平是国际标准。真正的问题是中国 律师是否可在优质工作中获得规模效应以实现该标 准。”Todd 如是说。 由于市场不断发展，许多业界人士认为中国律所 应该并且将要与国际律所成为平等合伙人，共同 为同一个客户合作处理同一笔交易。Todd 称：“大 多数情况下，国际和中国律所销售的产品仍有所 不同，他们分别专注于境内和境外业务。在许多交 易中，客户将继续需要国际顾问。中国律师在本土 市场仍将占据优势，作为中国交易的主要守护者， 而客户对于国际律所的需求不会仅因价格差异就 不复存在。”
由于公司对风险管理的重视程度不断加深，同时内 部法律部门的能力进一步提高，因此公司对外部律 师的要求也更加严格，在聘用外部律师时，要求服 务优质，专业知识技能过硬，以及能在短时间内完 成任务。因此，律所单凭价格就能赢得委托的可能 性越小越小，提供国际标准的法律服务和低于国际 标准的价格才是一些国内律所制胜的新法宝。 在一般涉及较少境外要素，且可由中国或国际律 所处理的中端市场中，目前领先的国内律所占有 一定优势。 香港上市公司，著名房地产开发商瑞安房地产法 律总监黄金纶先生称：“不少国内律所正在赶上国 际同行的步伐，并在服务在华外企方面发挥越来越 重要的作用。他们并非只是提供一般性公司法律服 务，他们在一些中高端交易项目，比如企业融资和 并购交易中的能力更是有明显提高。国内律所能够 提供与许多国际律所相媲美的法律服务，而且收费 保持在一个更加合理的水平。” 此外，黄先生指出，这些中国律所已采纳运用团 队合作的国际模式为客户提供服务，这令国际客户 对他们更加有信心。
合伙人流动频繁：市场晴雨表
最近几个月，越来越多的合伙人（不仅是中国律 师，还包括外国律师）纷纷离开国际律所，加盟国 内优秀律所。此举印证了中国律所的崛起，在某些 层面是客户呼吁更加合理的收费的直接反应。 普衡北京代表处前合伙人林华伟今年三月份加盟 环球律师事务所，担任合伙人。林律师专攻并购、 私募投资和外商直接投资领域，他解释作出这个决 定的主要原因是本地平台能够为客户提供性价比更 高的服务。林律师称：“今时今日，客户更加注重 律所收费和性价比。国内和国际律所的收费大相径 庭，因此本土律所正在成为备受青睐之选，特别是 本土事务所提供国际商业服务和意见的能力提升时 更是如此。” 君合律师事务所是近来引进国际律所合伙人的另
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Analysis >>
PRC partnership appraisals – time to lift the bar
进一步发展
ISSUE 7.5
NEWS | analysis >>
T
he time has come where the issue of partner performance and quality of legal advice is now uppermost on law firms’ business agendas. Leaders in the legal sphere talk about how their firms only employ connoisseurs of the legal industry, but in reality many firms have given scant regard to quality-checking their partnerships by properly appraising the performance of partners regardless of their seniority. One PRC firm that has embraced the importance of maintaining partnership standards is Global, which, five years ago, put together an appraisal system to gauge partner performance. Managing partner Liu Jinrong gathers a committee of around seven partners annually to review the performance of every partner, including themselves. Elements reviewed (these are subject to market changes annually) include economic (revenue brought in and number of billable hours) and management performance (managing practice team and potential complaints from colleagues and clients). “We also assess contributions in other aspects, including marketing and public affairs management. These are included in the standard review package,” Liu said. In the event that a majority of the committee is of the view that the partner’s performance is not satisfactory, they will schedule a separate meeting to assess the problems and suggest measures to improve the situation. The target partner’s performance will then be closely monitored by the committee for the next 12 months. Like Global, Han Kun’s appraisal system also revolves around both qualitative and quantitative elements. But while Han Kun reviews the annual revenue brought in by partners and their administrative contributions, the firm also places great importance on a partner’s project execution skills, the level of innovation shown and the types of legal advice given to clients. “There is no hard and fast rule for reviewing non-pecuniary elements. We also need to consider if a partner fits the whole corporate culture and how the other employees feel about that partner,” said Chao Yijun, a partner at Han Kun. According to both Liu and Chao, partner appraisals at PRC firms are very flexible and highly discretional.
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Partners are also judged on their integrity and professionalism – both notoriously hard to measure. “Once a partner fails these two elements, they would have failed the entire review,” said Global’s Liu.
Expansion plans and quality control
While some firms claim that they do have stringent exit strategies for underperforming partners, not many have ever had to let one go. Global, established in 1984, is a good example. “Our reviewing period is two consecutive years. If the partner fails both years then we will let them go, but we have never had to do so yet” said Liu. Like Global, Jincheng Tongda & Neal (JT&N) has also never demoted or forced any partner to leave, although the firm does incorporate a specific clause upon partnership stating that if partners continuously fail to meet revenue targets, their partner titles will be stripped. “We do have rules as such but it has never been strictly enforced. I don’t think any of the local firms will implement such strict rules,” said Nancy Zhang, a Liu Jinrong senior partner at Global JT&N. She suggest that enforcement of exit strategies is rare across the legal industry in China. “This would affect a lot of firm partners across China,” she said. But this does raise the question of why firms would keep partners who don’t deliver. Hubert Tse, a senior partner at Boss & Young, points out that the legal industry in China is still nascent. “We are still at a development stage where resources are being largely committed [to] business development and marketing. Further down the track, more attention will be placed on management and quality control of partnerships.” It seems that the focus for most PRC firms is still on headcount increases and firm expansion – a sizeable partnership will usually allow the firm to win a greater market share. Yet some partners argue that there are other variables – for instance, over 2008 and 2009, which Liu describes as “turmoil years”,
►► Levels of partnership appraisal identified by PRC lawyers Entry-level partner
Intermediatelevel partner
Experienced partner
Exceptional role model
Inexperienced in many management skills but with a base-line ability and both potential and desire to improve. Performing well, particularly in financial terms. Has overall experience and skills across the balanced scorecard, fulfilling early promise and contributing well to management in a number of areas. Still eager to learn. Partners who consistently contribute to the management and leadership of the firm, perform strongly in most areas, and are core to the firm. Reserved for the “best in class” partners who are achieving fame and recognition in key areas. Partners who have moved from good to great
partners have been given some slack in terms of their set targets. Han Kun, on the other hand, takes into consideration each partner’s assigned responsibilities. “There are some exceptions,” said Chao. “If a partner has been appointed to head administrative work, the required billable hours will then be cut. And if partners are new to the firm and require more time to settle, we also give them more room to grow.” Although the firm does assess its partners’ performance Chao notes that it doesn’t have a standard procedure to get rid of partners. “If a partner is not performing, we develop a solution together,” he said.
Move forward by letting go
The general picture then, is one of loose appraisal systems and even looser policies on weeding out poor performers from the partnership altogether. This strategy is followed by many firms in the name of growth. The only problem is that, without a framework of checks and balances, firms will end up with resentment being generated by strongperforming partners against their weak-performing counterparts, and this often leads to the strong performers departing for firms where they can receive rewards that correspond closer with their relative contribution. International firms, at least up to this point, are more likely to have more effective partnership appraisal systems. An example is Clifford Chance’s recent new management plan to identify and address underperforming partners. Partners will be assessed 11
NEWS | analysis >>
Legal Traveller >>
Arthur Mok, partner Ropes & Gray
Favourite country to visit:
Japan, specifically Tokyo. It’s so clean! My wife and I love the food and the kids can’t get enough of Disneyland.
Most memorable travel experience:
My first trip to Beijing almost 20 years ago. It was a time when folks still applauded after landing from the US. There were little yellow mian bao taxis everywhere, the Forbidden City had not yet been spruced up and there was an innocence to the city that seems to have been lost over the years.
What is the biggest trouble you face when on a trip:
Not having enough time to squeeze everything in.
Your favourite restaurant for a business lunch:
Din Tai Fung in Shanghai. It’s not fancy, but the food is good for the soul and their xiao long baos set the right tone for business discussions (rewarding if you handle with care!)
Most important thing to bring on business trips:
Extra batteries for my BlackBerry
“We do have rules for partnership appraisals but they have never been strictly enforced. I don’t think any of the local firms will implement such strict rules because this would affect many firm partners across China” by a 17-member committee, led by managing partner David Childs, and will be given a nine-to-12 months’ warning period for underperformance. The firm is further tightening its partner appraisal system by formalising an annual review process that will see partners across all offices appraised on the same criteria, including billing and business levels.
JT&N
The long-term prosperity of firms worldwide depends mostly on the quality of their partnerships. Given the meteoric growth of firms here over the last decade, the quality differential may be greater here than anywhere else. Managing partners may have to have some difficult meetings if they are to ensure high quality extends right through to the last partner. ALB
合伙人效绩评估 — 是时候抬高门槛了
合
伙人效绩和法律专业水平这两个问题如今已被 提上国内律所发展的重要议程。 毋庸置疑，国 内律所的合伙人在招募新合伙人和律师时会采用严格 标准已确录用最好的人才，但不少律所常常忽视了通 过恰当地标准和方式审核现有合伙人的效绩并保证合 伙人团队的平均水平。 环球是一家重视维持合伙关系标准重要性的中国律 所。该所五年前就建立了审核合伙人表现的体系。管 理合伙人刘劲容每年召集由七名左右的合伙人组成的 委员会审查每名合伙人（包括他们自身）的表现。审 核的标准（受每年市场变化的影响）包括经济（创 造的收入和可计费的小时数）和管理表现（管理工 作团队及来自同事和客户的潜在投诉）两个方面。 刘律师表示：“我们还评估包括营销和公共事务管 理在内的其他方面的贡献。这些都包含在标准审查 组合中。”如果委员会中大多数人认为合伙人的表现 令人不尽满意，那么他们会安排单独会面，评估问 题并提出改善问题的措施建议。目标合伙人的表现 将在此后12个月受到委员会密切监控。 和环球一样，汉坤的评估体系也涉及定性和定量两 个方面。不过，汉坤在审查合伙人每年创造的收入和 他们管理贡献的同时，还格外重视合伙人的项目执行 能力、法律架构创新水平和法律服务质量。汉坤的合 伙人晁毅军称：“审查非金钱方面并没有硬性规则， 我们还需要考虑合伙人是否适合整个企业文化以及 其他员工对该合伙人的看法。” 据刘律师和晁律师表示，中国律所对合伙人的评 估十分灵活而又极具不定性。按照诚信和专业精神 来评判合伙人，众所周知这两方面都很难衡量。环 球的刘律师称：“一旦合伙人的这两方面都不合格， 那他们就可能通不过整个审查。”
扩张计划和品质控制
尽管一些律所声称他们针对表现不佳的合伙人制定 了严格的退出策略，但真正让合伙人离开律所的并 不多。成立于1984年的环球就是个很好的例子。刘 律师表示：“我们的审查期为两个连续年度。如果合 伙人连续两年都没有通过评估，我们可能会建议他 退伙，但目前为止该现象尚未发生。” 和环球一样，金诚同达律师事务所也从未降低任何 合伙人的级别或迫使他们离开，但该律所在建立合伙 关系时的确收纳了一项特别条款，规定如果合伙人连 续未能实现收入目标，则会剥夺他们的合伙人资格。 金诚同达高级合伙人张莉萍表示：“我们确实有这样 的规定，但从未严格执行过。我认为任何本地律所 都不会实行如此严苛的规定。”她指出强制执行退出
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Nancy Zhang
策略在整个中国法律行业十分罕见。她说：“这会影 响整个中国的许多律所合伙人。” 但这提出一个问题：律所为什么要留下不能满足 标准的合伙人。邦信阳高级合伙人谢鸿铭指出，这 是因为中国的法律行业尚不成熟。“我们仍处于发 展阶段，资源主要被投入到业务发展和营销中。随 着该行业的深入发展，会愈发注重合伙关系的管理 和品质控制。” 似乎大多数中国律所的重心依然是人员扩充和律 所扩张，因为规模庞大的合伙关系通常可以让律所 赢得更大的市场份额。但一些合伙人认为还存在其 他变数，例如在2008年和2009年（刘律师称之为“ 市场动荡之年”）合伙人的设定目标稍有降低。另一 方面，汉坤却考虑每名合伙人的指定的职责。晁律 师表示：“还有一些例外情况。如果合伙人被委任负 责行政管理工作，则会减少规定的可计费小时；如 果合伙人刚加入律所，需要更多时间适应，我们还 会为他们提供更大的成长空间。” 晁律师留意到，尽管律所的的确确评估其合伙 人的表现，但却没有辞退合伙人的标准流程。他 说：“如果合伙人表现不佳，我们会一起制定一个 解决方案。”
选择放手方能更好发展
采用一种宽松的评估体系以及更宽松的政策是目前 普遍的选择，合伙人即使表现不佳也让将继续合伙 关系。许多律所以规模成长之名支持该政策存在的 合理性。但关键问题在于，如果没有效绩审核和提 高平均水品的框架，表现突出的合伙人将对表现不 佳的合伙人心怀不满，而这通常导致表现突出的合 伙人离开该律所另谋更好平台。 就这一点而言，国际律所（至少到目前为止）更多 采用更有效的合伙关系评估体系。以高伟绅近期宣布 的合伙人效绩管理计划为例，该所合伙人将接受由 17名成员组成的委员会（由管理合伙人David Childs 领导）的评估，表现不佳的合伙人将有9至12个月的 观察期。该律所通过将年度审查流程正式化，进一步 使其合伙人评估体系严格化，而该年度审查流程将对 所有办公地点的合伙人按相同标准（包括计费和业务 水平）进行评估。 世界上任何地方的律所的长远繁荣主要取决于律 所合伙人团队的品质，但鉴于中国律所过去十年的 蓬勃发展，律所合伙人之间业绩和能力参差不齐的 程度比其他国际相对严重。管理合伙人要想确保律 所中每名合伙人都具有同等的高品质，可能会遇到 相当大的阻力和挑战。 ISSUE 7.5
NEWS | news >>
Update >>
CIETAC COLUMN 贸仲建设工程争议评审规则于2010年5月1日起试行
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国国际经济贸易仲裁委员会建设工程争议评审规则（试行）》（以下简称“《评审规则》”）已于2010年1月27日由贸仲第十 七届委员会第四次主任会议审议通过，并于2010年5月1日起试行。 建设工程争议评审是针对建设工程行业的特殊性而产生的一种替代性争议解决方式，一般由当事人选定的专家在工程早 期介入，定期跟踪工程进展情况，在工程进行过程中协助化解小分歧和及时评审解决争议，以保障工程的顺利进行。为满足建设工程行业 争议解决的特殊需要，建立健全建设工程争议评审机制，进一步完善贸仲的多元化争议解决服务体系，增强贸仲在建设工程行业的影响 力，贸仲委通过全面论证、多方征集意见，在充分考虑中国现有国情、制度基础和吸收借鉴国际成熟经验的基础上，适时制定了《评审 规则》，并同时制定了《建设工程争议评审收费办法（试行）》，作为《评审规则》的配套文件。 《评审规则》在体例上尊重争议评审的特点，以常设评审组为主要模式、以临时评审组为补充模式。在评审组的程序安排上，突出专家 评审的特色，以评审组为主导，由评审组自行决定和组织程序进行，同时考虑到具体国情，贸仲委可以在一定情况下给予适当协助和提供 相关服务，充分发挥贸仲委的专家资源优势和覆盖全国的网络资源优势。 在评审意见的效力上，考虑到目前国内评审制度尚属新生事物的现状和与我国《标准施工招标文件》的衔接，规定效力的默认模式是 当事人在规定期限内无异议评审意见才产生约束力，同时允许当事人对评审意见的效力进行约定，评审意见依约定对当事人产生约束力。 《评审规则》充分尊重当事人的意思自治，注重规则的开放性和灵活性，以满足不同层次当事人的需要，为未来制度的发展预留了空间。 欲知更多详情，请登录贸仲网站www.cietac.org。 地址：中国北京西城区桦皮厂胡同2号国际商会大厦六层 邮编：100035 电话：+8610 82217788 传真：+8610 82217766 / +8610 64643500
Add:6/F, CCOIC Building, 2 Huapichang Hutong, Xicheng District, Beijing 100035, P.R.China Tel:+86 10 82217788 / Fax: +86 10 82217766
CHINA >>
Zhong Yin adds three and launches in Taizhou
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hong Yin has recently launched a Taizhou office, the firm’s first in Zhejiang province, becoming the first national firm to take on the Taizhou market. The Taizhou branch is a result of an invitation from the Taizhou municipal government. The invitation is part of the government’s extensive program of invitations to large-scale companies and service providers from first-tier cities. Zhong Yin’s role in Taizhou will be providing legal expertise in capital markets, PE, finance, corporate and legal risk sectors, to companies in Taizhou who have nationalising ambitions. Taizhou is home to more than 3,000 enterprises, 95% of which are private companies, including Geely Automobile and QianJiang Motor. Auto parts & accessories, pharmaceutical and chemical, home appliance and ship manufacturing are among main industries of Taizhou.
www.legalbusinessonline.com
While there are currently 18 listed companies in the region, the municipal is aiming for a total of 50 listed companies by 2015. In line with its expansion ambitions, Zhong Yin has recently hired a team of anti-dumping experts as part of its strategy to build its international trade remedy and WTO practices. Both Jia Zheng and Song Xiangwei joined the firm from Dacheng while
►► Taizhou–quick facts • • • •
Number of law firms: 50 Number of lawyers: 370 2009 GDP: RMB202bn More than 3,000 enterprises, 95% of which are private companies • 18 listed companies now and 50 by 2015
Chen Jing joined from JunZeJun. The additions mean Zhong Yin’s team for international trade remedy and WTO work now numbers ten. ALB
中银成立台州分所，聘请反倾销律师团队 近 日，中银律师事务所在浙江省台州市设立了分 所。台州分所是中银在浙江省设立的首家分所, 同时也成为进驻台州市的首家大型全国性律师事务 所。中银表示，因受台州市人民政府邀请，而在台 州设立分所，进驻台州创业服务园。该分所旨在为 台州企业提供境内外股票发行、上市融资，股权融 资,私募基金，股权交易，BOT、BT项目投资建设， 企业法律风险防范等法律服务。 作为浙江民营经济试点城市之一， 台州集聚着 3000多家大中型企业，包括吉利汽车、钱江摩托、 海翔药业、海正药业、华海药业、嘉仁模具等一批 知名企业。汽车摩托车及配件、缝制设备、医药化
工、家用电器、塑料模具为五大主导产业。目前已 拥有18家上市公司，总市值接近100亿元，其中中 小板上市公司数量已位居全国第二位， 争取到2015 年台州将达到50家上市公司。 与此同时， 中银业扩大了其总部的国际贸易法律 团队，吸收由贾征、陈静、宋祥伟律师组成的反倾 销律师团队加盟。在加盟中银之前， 贾征和宋祥伟 在大成律师事务所担任律师，而陈静则在君泽君当 律师。 三位律师都专门从事反倾销、反补贴等国际 贸易救济业务。中银将以该团队为核心，组建中银 贸易救济及WTO法律服务中心，专业从事国际贸易 救济以及与WTO相关的法律服务业务。
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NEWS | news >>
news in brief >> Legislative Affairs Office appoints new director The Legislative Affairs Office of the State Council has promoted Song Dahan, the deputy director, to take over the helm as the former director Cao Kangtai retires. The LAO is an administrative office within the State Council which assists the Premier in providing legal advice and administrative laws to govern the behavior of government departments. This includes advice on litigation, legal reconsideration, compensation, punishment, license, administrative charges and execution.
国务院法制办主任易人
国务院法制办近日宣布，原主任曹康泰因到退休年龄， 由副主任宋大涵接任。 曹康泰到去年已年满65岁，已届退休年龄。曹康泰 参与、主持国务院立法工作时长近20年。1991年7月至 1998年4月，曹康泰担任国务院法制局副局长。随后在 国务院机构改革中，国务院法制局改为国务院法制办公 室，曹康泰转任国务院法制办副主任。2002年9月，他 升为国务院法制办主任，全面负责国务院法制办工作。 宋大涵1952年12月出生，曾担任国务院法制局任副 局长，1998年后改任国务院法制办公室副主任，现任国 务院法制办公室主任、党组书记。
COSL appoints new company secretary China Oilfield Services Limited, a subsidiary of CNOOC listed in Hong Kong, has appointed Yang Haijiang as its new company secretary and authorised representative. He will replace Chen Weidong who resigned from the position to take up an appointment with another company. Yang joined the company in 1998 and since 2003 has served as an in-house legal counsel in the corporate secretarial department, manager in charge of corporate governance and as a representative on securities matters. He has been responsible for handling legal-related matters of the board of directors, the board of supervisors and shareholders of the company.
中海油服任命新公司秘书及授权代表
中国海洋石油公司子公司、香港上市公司中海油田服务 宣布，杨海江已接任公司秘书及授权代表，原任陈卫东 因受聘于其他公司辞职。 杨先生于1998年加入中国海洋石油总公司下属专业 公司从事行政工作，于2003年5月起曾分别担任中海油 田服务董事会秘书办公室及法律事务部法律顾问，公 司证券事务代表、董事会秘书办公室公司治理与证券 业务经理，负责处理公司董事会、监事会及股东相关 的法律事宜。他拥有高级经济师职称及中华人民共和 国律师资格。
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Beijing >>
King & Wood lures Clifford Chance's
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upert Li, previously the Beijing chief representative and partner of Clifford Chance, has swapped his partnership at the Magic Circle firm for a senior management position with domestic powerhouse King & Wood. Li joins King & Wood as international managing partner to lead the expansion of the firm's international business, including its Hong Kong office, and both inbound and outbound work for the firm. He will split his time between Hong Kong and Beijing. Apart from bringing additional technical expertise and market connectivity to King & Wood's capital markets and M&A practices, Li's previous experience as the sole representative for Asia on Clifford Chance's partnership council will also benefit King & Wood's management and governance. For Li, the single most important motivation behind his decision to leave the top-tier international firm and join King & Wood is the opportunity to be at the centre of the firm's management and decision-making function. “It's a choice of professional development. I benefited from my tenure as a member of Clifford Chance’s firm-wide
partnership council, but it dawned on me recently that the sensibilities and perspectives are very different from the centre of a large firm,” said Li. “So I’ve aspired to operate at the centre of a firm-wide executive management, where I can gain a much wider perspective of a firm's business and operations and develop different sensibilities. From my point of view, the most pronounced difference between my current and previous position is not 'local' versus ‘international’ but ‘centre’ versus ‘outskirt’.” Although a certain level of competition exists between leading international and domestic firms, Clifford Chance and King & Wood have Rupert Li King & Wood fostered a collaborative relationship, through co-counselling on a number of transactions for the same clients. Li noted that his appointment with King & Wood will increase this collaboration between the two firms, rather than reducing it. He also made the point that although international firms’ being restricted
高伟绅北京资深合伙人加入金杜 英 国高伟绅律师事务所北京资深合伙人兼北 京代表处首席代表李孝如已加入金杜，担 任该所国际管理合伙人。作为金杜管理委员会核 心成员之一，李律师将频繁往来于香港和北京办 公室，为客户提供法律服务并管理该所涉及对外 和对内跨境交易市场的拓展以及国际业务部门， 包括香港分所的发展。 除为金杜的资本市场和并购业务带来更多国际 经验和市场优势外，李律师在担任高伟绅全球合 伙人理事会亚洲唯一代表时积累的过往经验，也 将对金杜的管理机制大有裨益。 对李律师而言，促使他决定离开国际顶尖律所 转投金杜的一个最重要的原因是，他有机会在 顶尖国内所最中心的管理层及决策层大展拳脚。 李律师表示：“这是一个职业发展选择。担任 高伟绅律师事务所合伙人理事会的成员令我获益 匪浅，但近来我认识到处于一家大型律所的中心 决策层的感觉与观点大有不同。因此我渴望在律 所最中心的执行管理层工作，希望对律所的业 务及运营获得更全面的认识，并培养不同的洞察 力。在我看来，我目前的职位与以前的职位显著
的差异并非‘本地’与‘国际’的差异，而是‘中心’与‘ 外围’的差异。” 尽管领先的国际和国内律所之间存在一定程度 的竞争，但高伟绅和金杜已通过为相同客户在众 多交易上提供合作咨询，培养了合作关系。李律 师称他在金杜任职将加强两家律所之间的合作， 而不是减弱合作关系。 李律师同时指出，尽管多年来国际律所在国内 执业受限，抑制了国际律所在中国的发展，但 国际律所仍然并将继续保持市场领导者的地位。 李律师称：“一般来说，就产品类型、服务标准 及与客户关系而言，国际律所仍是市场领导者。 国际律所发展的时间相对较长，从机构和机制的 角度看，国际律所较中国律所更具优势。中国律 师界二十年的发展时间尚短，中国的法律服务行 业仍然是新兴行业。国际律所在相当长的时间内 仍将保持市场领导者的地位。” 本地律所短期内是否将超越国际律所，一跃成 为市场领导者，这个问题尚难回答。然而，近 期合伙人横向流动已印证国际顶尖律所的高级 合伙人纷纷担任中国律所的领导职位，明确表 ISSUE 7.5
NEWS | news >>
Beijing chief from practising local law for many years has constrained their growth in China, they are still – and will – remain market leaders. “In general, international firms are still leaders of the market in term of products, service standards and institutional relationships with clients. They've been in the market for much longer than PRC firms and institutionally they still have great advantages over PRC firms,” said Li. “Twenty years is a short period of time for the development of the PRC bar, so the legal industry here is still nascent. International firms will remain market leaders for quite some time,” he added. It's arguable whether local firms will overtake international firms as market leaders any time soon. However, the pattern seen recently in lateral partner movement, which has senior partners from top-tier international firms taking up leadership roles in PRC firms, definitely suggests that domestic firms are not only winning more important mandates on cross-border transactions but are also becoming increasingly attractive as places for senior partners to work. ALB
uk report SJ Berwin court Proskauer Rose for merger Its scope would always have been much narrower, but the talks around a merger between West Coast-headquartered US firm Orrick and UK player SJ Berwin were already underway even before the Hogan-Lovells merger had actually come into effect. Some industry observers saw the Orrick-SJ Berwin tie-up as the first in a possible series of UK-US reactions to the Hogan-Lovells coup. Alas, the talks fell over as most such discussions do – in the early stages. Not to be deterred, though, SJ Berwin is already pressing ahead with another potential US partner – Proskauer Rose. This merger is said to be driven by the funds practices of the two firms, who already have a working relationship. The combined firm would have revenues of approximately US$900m, putting it in the global top 30 by revenue. Part-timers patch up capacity at Freshfields An anticipated upturn in work levels later this year has prompted Freshfields to consider tapping into its network of alumni to handle increased
workloads. Given the working title “Fresh Work”, the scheme is aimed at former fee-earners who might be available to work either part-time or on a short-term basis during busy periods. Changes afoot for associate salaries in 2010 Clifford Chance has followed suit behind Freshfields to become the latest Magic Circle firm to unfreeze associate salaries. The firm raised rates for assistants as well as allowing them to progress through the lockstep system. From 1 May, associates and trainees will enjoy increased rates by an average of 3%– NQs will now earn £61,500, up from £59,000 last year. An associate with one year’s PQE will now take home £68,000 and three-year PQE salaries have increased to £84,500. Trainees will also benefit from a small salary increases: first and second years will now earn £38,000 and £43,000. Meanwhile, Linklaters has announced its associate pay scale for the coming year, maintaining its current rates after a reduction 12 months ago.
ROUNDUP
明国内律所不仅在跨境交易中赢得更重要的委 托，而且成为越来越吸引高级合伙人加盟的理想 工作之地。 www.legalbusinessonline.com
• DLA Piper recently appointed a 19-lawyer team from Simmons & Simmons to enhance the capabilities of its existing 100-strong lawyer practice operating from Milan and Rome. The team includes four partners • Lovells promoted 21 lawyers to its partnership this year in the litigation, IP and finance practice areas. It is the firm’s largest promotion since 2007, compared to the 19 and 18 made up in 2009 and 2008 respectively • Addleshaw Goddard litigation partner Monica Burch has won the partnership’s backing to succeed senior partner Paul Lee following a contested election for the position of chairman of the firm’s board. Burch will take over from former managing partner and current chairman of the LLP Mark Jones • Konstantin Mettenheimer and Guy Morton recently announced that they would not be taking on third terms as joint senior partners at Freshfields Bruckhaus Deringer. An election campaign is likely to be held in autumn, but the firm is yet to decide whether it will continue having a joint senior partner or instead opt for one lawyer to take on the role • Scott Bowie was recently appointed to succeed Tim Shipton as head of Linklaters global investment management team. Shipton will continue in his role as co-head of Linklaters’ investment managers • Reed Smith recently recruited four senior construction partners from Pinsent Masons, boosting its construction practice and leaving Reed Smith with just two London-based construction partners • Walker Morris is set to scrap its executive chairman role once current chairman Peter Smart retires in May 2011. The role of executive chairman will be replaced by a non-executive chairman and managing partner
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NEWS | news >>
news in brief >> More transatlantic mergers in the pipeline? Following the merger between US firm Hogan & Hartson and UK firm Lovells, a few other UK and US firms have initiated preliminary discussions on the possibility of a trans-Atlantic merger. City firm SJ Berwin recently revealed its strategy to explore mergers with US firms. It has entered into early-stage discussions around a potential tie-up with New Yorkbased Proskauer Rose, following the collapse of its merger talks with Orrick in early May. Meanwhile, New York outfit Sonnenschein Nath & Rosenthal have just announced a merger with Denton Wilde Sapte that will create a 1,400-lawyer firm.
更多横跨大西洋的合并正在酝酿中？
继美国霍金•豪森与英国路伟合并之后，又有数家英美 律所就横跨大西洋的合并的可能性展开了初步探讨。 伦敦律所SJ Berwin近期表示正在寻求与美国律所进行 合并的机会。该律所继五月初与奥睿律所合并对话失败 后，又与纽约的普士高律所就合作意向进行了初步探讨。 美国的博恩凯悟律师事务所是另一家宣告正探讨与英 国律所进行合并的可能性的律所，并寄希望借机巩固在 欧洲市场的地位。
Former Hogan HK MP Gordon Ng joins OMM Hogan & Hartson’s former Hong Kong managing partner Gordon Ng announced that his eponymously named firm, Gordon Ng & Co, has terminated its alliance with Hogans and would instead be entering into an association with O'Melveny & Myers, effective 1 May 2010. Gordon Ng now serves as a partner in the corporate finance and capital markets practice of O’Melveny & Myers in Hong Kong. 霍金•豪森前任香港管理合伙人Gordon Ng加盟 OMM
霍金•豪森律师事务所前任香港管理合伙人Gordon Ng宣 布，以其名字命名的律所Gordon Ng & Co已解除与霍金 的合作，并将于2010年5月1日起与美迈斯律师事务所结 成新的联营。Gordon Ng已加入美迈斯律师事务所香港办 公室，成为企业融资及资本市场业务的合伙人。
Linklaters' Harvey promoted to global head of litigation Marc Harvey has been appointed as the head of Linklaters’ global litigation practice. Harvey, who is currently the firm's joint managing partner for Greater China and head of litigation – Asia, Hong Kong, will replace Françoise Lefèvre, who returns to full-time client work. Stuart Salt, the firm’s Asia managing partner, said that Harvey’s appointment underscores both the importance of Asia in the firm’s global strategy and the growing profile of the region. 年利达香港合伙人晋升成为全球诉讼业务负责人
年利达律师事务所已委任Marc Harvey担任该律所全球 诉讼业务的负责人。Harvey现为该律所大中华区联席负 责人，并将接替即将卸任的负责人Françoise Lefèvre。 律所亚洲管理合伙人Stuart Salt表示，Harvey的上任 反映了亚洲在律所全球策略中的重要地位，以及更概括 地说明该区不断发展的前景。他说：“我们主要业务领 域的领导力量即将立足于世界的该地区，表明了这一地 区的重要性。”
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Beijing/Shanghai >>
Jun He’s triple whammy prelude to new US office F ollowing the arrival at King & Wood of Clifford Chance’s former Beijing chief Rupert Li as an international managing partner, Jun He has secured the service of three IP partners from leading US firms, in preparation for opening a new office in Silicon Valley. These two firms are at the pinnacle of the PRC legal industry, and are setting the pace in terms of hiring partners from international firms to support further internationalisation. The new partners joining Jun He are James Zhu and Zoe Wang, who previously served as Beijing and Shanghai managing partners respectively of Seattle-based US firm Perkins Coie. They were among the key members establishing Perkins Coie’s Shanghai office, which opened in 2006. Both are US-qualified lawyers and registered to practice before the US Patent and Trademark Office, and both focus on patent-related issues. Zhu primarily services the life sciences, medical device, chemical and material sciences sectors, while Wang prefers life sciences, nanotechnologies, data processing, and devices. Steven Cui, the third new partner in Jun He’s IP practice group, is
admitted to the California bar and also registered to practice before the US Patent and Trademark Office. He joins King & Wood from Jones Day’s Beijing office, where he was a counsel practising IP law with an emphasis on patent procurement, technology transfer, and portfolio management. Before joining Jones Day in 2008, Cui spent seven years in-house at Genentech in San Francisco, where he was lead IP counsel for the company's most promising drug products. “The arrival of the three new partners and their respective teams has bolstered the capabilities of our international IP practice group, and signals a new phase of growth for the firm in 2010,” said David Liu, a senior partner of Jun He. “They will be leading the development of our soonto-be launched Silicon Valley office, and bring in many new PE and VC clients, who need strong patent legal advice and services when they invest into high-tech enterprises that are in growing and expanding stages.” The firm, which had already established its New York office in 1993, is finalising its licence application for the Silicon Valley office and expects to complete the process within one month. ALB
君合引进三位精英，筹备开设硅谷分所
继
高伟绅前北京代表处首席代表李孝如加入 金杜担任国际管理合伙人后，君合已获得 来自领先美国律所的三位知识产权合伙人的加 盟，协助筹备开设新硅谷分所。中国法律行业的 两家顶尖律所近期的招聘动向表明，国内律所正 在积极吸引国际合伙人加盟以支持他们进一步国 际化发展的战略。 此前担任美国博钦律师事务所（总部位于西雅 图）北京及上海代表处管理合伙人的朱坚和王朝 晖律师同时加入君合，成为合伙人。朱坚和王朝 晖是成立博钦律师事务所上海代表处（于2006年 开设）的主要成员。 两人均具备美国律师执业资格且都在美国专利 商标局执业注册，并且都致力于专利相关事务， 但朱律师主要专注于生命科学、医疗设备、化学 和材料科学领域，而王朝晖则更专注于生命科 学、纳米技术、数据处理及设备领域。
崔轩律师是此次加入君合国际知识产权业务部 门的第三位新合伙人。他拥有美国加州执业资格 且亦在美国专利商标局执业注册。崔轩此前担任 众达北京代表处的知识产权法顾问律师，专注于 专利的申请、技术转让及知识产权管理。于2008 年加入众达之前，他在旧金山的Genentech公司 担任了七年的内部律师，主导该公司最具发展前 景的药物产品的知识产权咨询工作。 君合高级合伙人刘大力称：“三位新合伙人及他们 团队的加入大大巩固了我们国际知识产权业务部门 的能力，并预示着2010年本所迈入全新发展阶段。 三位新合伙人将主导本律所即将成立的硅谷分所的 发展，并带来众多全新私募投资和风险资本客户。 这些客户在投资于处于增长及扩张阶段的高科技企 业时需要强有力的专利法律意见及服务”。君合已于 1993年成立纽约分所，目前正在落实对硅谷分所设 立的牌照申请，并预计一个月内完成该筹备工作。 ISSUE 7.5
NEWS | news >>
us report Lovells Chicago office to close curtains Lovells recently announced plans to close its seven-partner Chicago office, due to its underperformance for a number of years. Although the plan is still subject to partnership approval it is expected that the office will close at the end of October, six months after the firm’s merger with Hogan & Hartson goes ahead. However, firm officials stress that the closure has been under review for some time and is not related to the merger. Lovells is currently in discussions to see whether there is scope to transfer the Chicago partners to another office, although this is not guaranteed. Meanwhile, Lovells US managing partner Marc Gottridge has vowed to continue building the firm’s New York presence, following its May merger with Hogan & Hartson. Bryan Cave look for UK tie-up St Louis firm Bryan Cave has been active on the merger front for a number of years – an attempted large-scale tie-up with Squire Sanders failed but a useful one with Atlanta-based 220-lawyer firm Powell Goldstein went ahead
last year. Now, however, it has installed one of the key players behind the Powell move – litigation partner Rodney Page – as head of its London office, with a specific directive to find a UK partner firm. Bryan Cave’s London office had a tough 2009 and its UK and European growth ambitions needed the extra impetus. The most likely merger candidate will be a mid-rank firm with similar PEP. Mayer Brown slashes staff Mayer Brown recently cut 28 associates and counsel and 47 members of staff from its US offices in the firm’s third round of layoffs in 18 months. The firm said that “overall demand for legal services has not recovered fully” and “voluntary lawyer departures have been significantly lower than our normal levels”, as reasons. Mayer Brown’s recently released financial results revealed that revenues fell by almost 14% in 2009, along with a decline in total revenue from US$1.12bn to US$1.29bn. The firm’s London office also saw a double-digit decline in revenues, with turnover falling by 16% to £93.8m from £111.6m in 2008.
ROUNDUP • Linklaters recently appointed Jean-Philippe Brisson as head of its US environment and climate change practice in New York. He joins a four-partner team in the firm’s practice • US firm Akin Gump Strauss Hauer & Feld has poached Hogan & Hartson’s Geneva office to launch its own Swiss practice this month. The team will be led by Charles Adams, Hogan’s former Geneva office managing partner and co director of the firm’s international litigation and arbitration practice, and will continue to focus on international arbitration, international civil litigation, corporate and commercial law and giving tax advice to corporates and high-net-worth individuals • Mayer Brown has launched a competition and distribution practice in Paris with the hire of partner Nathalie Jalabert-Doury from Carreras Barsikian Robertson & Associés, who joins the office as the new practice head • Milbank Tweed recently hired Shearman & Sterling’s Latin American practice head Andrew Jánszky, to lead its new São Paulo office. Jánszky – previously Shearman’s Latin American head and managing partner in São Paulo – will arrive at Milbank with associate Tobias Stirnberg, who joins as partner • Hogan & Hartson and Lovells may want to re-think their name post-merger, after it emerged that the Hogan Lovells name has already been trademarked by a road haulage company in Nebraska. If the name is not changed it could develop into a costly litigation battle www.legalbusinessonline.com
17
NEWS | news >>
Update >>
International Tax
Beijing
OECD and Council of Europe Agrees on revised treaty to help combat global tax evasion
CSRC offers guidance on ChiNext sponsorship
T
he Organisation for Economic Cooperation and Development (OECD ) said it agreed with European nations to modify a treaty designed to combat global tax evasion. The revision of the so-called Convention on Mutual Administrative Assistance in Tax Matters aims to “align the convention to the international standard on information exchange for tax purposes by allowing for the exchange of bank information,”. The Council of Europe, representing 47 countries from Germany to the U.K., announced that the will be signed at an OECD meeting on 27-28 May in Paris. “The convention is a unique instrument to counteract international tax avoidance and evasion,” OECD Secretary General Angel Gurria said in the statement. “The OECD and the Council of Europe have agreed to improve international cooperation to combat tax evasion and the standards set by the convention are being updated to reflect this new consensus.” The convention was first introduced in 1995 and counts Azerbaijan, Belgium, Denmark, Finland, France, Iceland, Italy, the Netherlands, Norway, Poland, Sweden, the UK, the US and Ukraine among its members while Canada, Germany and Spain haven’t yet ratified it. It will now be extended to developing countries to help them benefit from “the new, more transparent tax-cooperation environment,” the OECD said in the statement. This Convention covers assistance in collecting both direct and indirect taxation such as VAT; most Double Taxation Agreements do not cover indirect taxes. By Debbie Annells, managing director, AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong www.azuretax.com, a member of AzureTax Group (Tel) +852 2123 9339 (direct line), (Main Line) +852 2123 9370, (Fax) +852 2122 9209 Registered with the Chartered Institute of Taxation for purposes of anti money laundering legislation.
O
n 19 March 2010, China Securities Regulatory Commission (CSRC) issued the Guidelines on Further Duly Performing Sponsorship Work in Connection with ChiNext (the “Guidelines”), in an attempt to reiterate ChiNext’s market orientation.
1. Market orientation
There have been 66 enterprises listing on ChiNext as of 12 March 2010. Amongst the applicants, most enterprises have met the requirements on “High and New” (High Technology, High Growth , New Economy, New Service, New Energy, New Material, New Agriculture ), but certain sponsors sponsored enterprises engaging in traditional business and without remarkable innovation capabilities because of their misunderstandings about the market orientation of ChiNext. Therefore, the Guidelines reiterates ChiNext’s market orientation, that is, to support the enterprises having indigenous innovative capabilities and strong growth prospects.
2. Key industries for sponsorship
In accordance with the requirements of adjustment of the industrial structure and transformation of the mode of economic development, key candidates for sponsorship are enterprises in such sectors as new energy resources, new materials, information, biological and new medical pharmaceuticals, energy saving and environmental protection, aviation and aerospace, the sea, advanced manufacturing and hi-tech services, and enterprises in other sectors that have indigenous innovative capabilities and strong growth prospects. Industries to be sponsored with prudence required by the Guidelines are enterprises in such sectors as textiles and apparel, utilities producing and supplying electricity, gas and water, real estate development and operation, and civil engineering construction, transport, alcoholic beverages, food and non-alcoholic beverages, finance, general service business, and industries with overcapacity and redundant construction that state industrial policies expressly seek to curb.
3. Sponsors’ obligations Debbie Annells
The Guidelines further requires a sponsor to perform the following obligations: a. To select, foster and sponsor enterprises that intend to list on ChiNext in compliance with the state’s economic development strategy and industrial policy; b. To perform the obligations with due diligence, pay close attention to the innovative capabilities and focus on the analysis of the effect of its indigenous innovation capabilities on its growth prospects; and c. To make a comprehensive assessment of its growth prospects and full disclosure of the risks to its growth prospects, and issue an opinion on its growth prospects. LIU Rong (刘榕), Guantao Law Firm Email: liurong@guantao.com Tel: 86 10 66578066 / Fax: 86 10 66578016 Add: 17/F, Tower 2, Yingtai Center, No.28 Finance Street, Xicheng District, Beijing 100140, China
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Liu Rong
ISSUE 7.5
NEWS | news >>
Update >>
Update >>
如何在马来西亚 设立或发展业务
Singapore
马来西亚依斯干达经济特区 – 第二个广东珠 江三角？
观察名单两年满 除牌退市今朝令度
在
马来西亚国营投资机构公司(Khazanah Nasional Berhad)的领军下,依斯干达经济特区 (Iskandar Development Region)在2006年11月4日成 功在柔佛州南部开发。通过向深圳经济特区)的成功看 齐，IDR尝试把总面积为2217平方公里的依斯干达经济特区打造成 为一个国际工业和旅游业区域。IDR的主要宗旨是发展服务行业。 依斯干达区域发展局在依斯干达区域发展局法令2007 (Iskandar Regional Development Authority Act 2007)下成立,负责提供和推荐 政策和战略方向。此外，成立于IRDA 2007下的履行和批准委员将 负责分配、辨认、监测和协调主要战略和投资，并加速实施过。马 来西亚的其他经济特区包括工业自由贸易区、颁发生物科技地位殊 荣予生物技术和农业技术公司、促进信息和通讯科技产业发展的多 媒体超级走廊地位以及马来西亚工业发展管理局积极推动和鼓励外 国投资者来马创业投资的倡议。 马来西亚前首相，拿督斯里阿都拉表示，依斯干达经济特区是是 参照广东省珠江三角洲成立的。然而，经济特区的成功取决于各地 区的不同特点。珠江三角洲的成功可归结于多种因素，如：灵活和 非限制性的经济政策、公司税优惠政策、投资者税收减免、公司利 润遣返政策、原料进口和产品出口税免除等。 依斯干达经济特区为投资者提供的优惠措施包括：宽松的股权政 策、可自由在全球集资、可在批准区内无限制聘用外国员工、豁免 10年的公司税等。此不但充满商机，措施本身也很有吸引力，给海 外投资者带来意想不到的新突破。 依斯干达经济特区的成功取决于几个关键决定。首先，政府应主 动与外国投资者和管理者实施政策讨论。同时,政府必须采取本土和 海外投资者都可接受的社会经济政策。珠江三角虽已成立了30年， 但依斯干达经济特区亦不会比之逊色，它应该是促进我国经济复苏 和成功的一个踏脚石。 作者：羅斯娜 .莫哈莫. 薩勒（马来西亚阿兹米律师 所，資深律师） 联系：马来西亚阿兹米律师所，中文团队 姓名: 陈寿阳（马来西亚阿兹米律师所， 伙伴律师） E-mail: chinadesk@azmilaw.com 电话: 00 6 03 2118 5009 传真: 00 6 03 2118 5113 地址: Azmi & Associates 14th Floor, Menara Keck Seng
羅斯娜
新
交所主板向来是拥有较长设立时间和业绩记录的大型 公司的上市平台，而凯利板则为那些由保荐人督导的 快速增长性企业服务。提供两个完全不同的上市平 台，是为了迎合不同规模企业之需要，从而加强新加 坡作为一种资本市场选择的地位和竞争力。近期新交所正在考虑 提高主板上市准入标准，以进一步明确在主板上市的大型公司和 在二板凯利板上市的小型企业的区别界限，并于2010年1月6日公 布了一系列拟修改意见——包括将首次公开募股或反向收购的最 低股票发行价格从原来的新币20分提高到新币50分——并计划在 今年第四季度开始施行。 这些修改意见是新交所考查了其他发达市场的市场准入标准之后 提出的。考查中发现，寻求在这些市场上市的公司往往远超出基线 标准，因此，新交所决定与其保留过时的最低准入标准，以透明的 方式进行修订则更有现实意义。 根据该拟修改意见，申请在新交所主板上市的公司必须符合以 下两项准入标准之一： （1）公司须在最近的财政年度盈利并拥有最近三年的经营业绩记 录，且根据其发行价格和上市后已发行股本，其市值达到至 少1亿5千万新币以上；或 （2）公司在最近财政年度产生营业收益，且根据其发行价格和上 市后已发行股本，其市值在新币3亿以上。 拟修改的上市主板准入标准也将适用于反向收购公司。凯利板上 市企业若寻求转移至主板上市的话，只须符合上述第（1）条标准。 市场专家认为，新交所公布的新要求为拟上市公司设置了更高 的门槛，且更强调拟上市公司的市值，而非前盈利能力。根据海 峡时报的推算，最低市值1亿5千万新币的要求将使超过半数的目 前已在主板上市的公司丧失上市资格。 此外，新交所同时宣布正在拟定特殊目 的收购公司（以下简称“SPACs”）的上市机 制。SPACs是指通过公众融资收购效益良好企 业的现金公司。新交所已为SPACs制定出一个 独立的上市框架，寻求上市的SPACs必须符合 至少1亿5千万市值的要求。
賈文怡 企業事務部法律顧問 Ph: (65) 6322-2230 Fax: (65) 6534-0833 E-mail: joycejia@loopartners.com.sg
賈文怡
陶丽 企業事務部法律顧問 Ph: (86) 13911000063 Fax: (65) 6534-0833 E-mail: taoli@loopartners.com.sg 俊昭法律事務所 88 Amoy Street, Level Three, Singapore 069907
www.legalbusinessonline.com
陶丽
19
NEWS | news >>
Beijing >>
Pressure from large firms forces Kingfield to merge with Dacheng
T
he recent merger between 20-lawyer Beijing firm Kingfield and the country’s largest law firm by headcount – Dacheng – is proof that smaller firms are facing growing pressure due to the competition from larger rivals. Kingfield, which was established in 2006 by partners Nancy Zhang, George Wang, Zhang Shuzhen and Tian Hui, officially merged into Dacheng’s Beijing headquarters in April. George Wang, Zhang Shuzhen and Tian Hui have been admitted to Dacheng’s senior partnership, while Zhang Jingwei and Tian Hong become partner and senior counsel. They bring an established aviation and shipping practice and team to Dacheng. Nancy Zhang, however, chose to break away from the merger and joined JT&N (as senior partner) with her team of real estate and international business lawyers. Over the firm’s four-year practice, partners grew to realise that Kingfield, being a small-
scale firm, would continue to lose market share given the increasingly competitive market. “It takes time to realise that the market is now different to how it was many years ago where competition was not as intense. Today, clients will always choose larger firms first,” said Nancy Zhang. “If you are a small firm, you will be in trouble because you become targets for larger firms. Larger firms will always try to poach partners from your firm,” she explained. All four founding partners eventually conceded, chose to split and merged into Dacheng, which is known, famously or infamously, for its vast links with international allies and aggressive domestic expansion strategies. The firm launched 13 national branch offices (many via mergers and acquisitions) and consequently recruited over 140 partners and 250 fee earners during last year alone.
来自大型律所的压力迫使乾 丰与大成合并
近
期，拥有20位专职律师的北京律所 — 乾丰 与国内律师人数最多的律所 — 大成之间的 合并证明，由于大型竞争对手的竞争，小型律所 正面临越来越大的压力。 由张莉萍律师、王英波律师、张淑珍律师和田 辉律师于2006年成立的乾丰律师事务所四月正式 与大成律师事务所北京总部合并。王英波律师、 张淑珍律师和田辉律师已获得大成高级合伙人资 格，而张景伟律师和田鸿律师成为大成的合伙人 和高级顾问。他们为大成的航空和海事业务领域 带来完善执业方式及成熟的团队。然而，张莉萍 律师却选择在合并后，与其房地产及国际商务律 师团队转投金城同达律师事务所。张律师现任金 城同达高级合伙人。 在该律所四年的执业期内，乾丰合伙人日渐认 识到作为一家小型律所，由于市场竞争日趋激 烈，将继续流失市场占有率。张莉萍律师称：“ 现今市场与多年前的市场有所不同，当时竞争并 不十分激烈。现在，客户将始终优先选择大型律 所”。她继续解释说：“小型律所还将逐渐陷入人 才困境，因为你会成为大型律所的目标。大型律 所一直试图从这些小型竞争对手中挖走合伙人”。
Firm Profile
Lifang & Partners
R
ecently, the Supreme People’s Court announced China’s 2009 top 10 intellectual property judicial cases, among which three are cases concerning the conflicts between trademarks and enterprise names. In the BMW vs. Shenzhen Shiji BAOMA Clothing Co., Ltd. et al, the court found that the Shenzhen company had confused the consumer by using BMW’s well-known Chinese trademark (which is pronounced baoma) in its enterprise name, and ruled that the defendant’s action had constituted trademark infringement and unfair competition against the plaintiff and ordered it to change its company name and pay 500,000 yuan in damages. The conflict between trademarks and company names has been a hot issue for years. In China, trademarks are examined and approved by China Trademark Office, while the enterprise names are registered
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Trademark and enterprise name conflict cases soar in 2009 with the Administration for Commerce and Industry (AIC) at different levels and in different regions. When examining the enterprise names, the AICs have neither a trademark database nor a centralized enterprise name database for their reference. Thus a lot of conflicts between trademarks and enterprise names occur. In March 2008, the Supreme People’s Court released a new interpretation on handling disputes between registered trademarks, enterprise names and prior civil rights. According to the interpretation, in case that an enterprise’s name is judged to have infringed prior trademarks or constituted unfair competition, the court, in accordance with the law, shall order the defendant to stop using the name or regulate its use. These kinds of conflicts arise not only between Chinese companies, but also between foreign companies and Chinese companies. It is not uncommon for the
Chinese trademark of a foreign company or the Chinese characters with identical or similar pronunciation to a well-known foreign language trademark to be registered as another’s enterprise name. This may cause great trouble to the foreign company when it expands its business in China. We normally advise our clients to take appropriate actions as early as possible because a number of Chinese courts held that it is not proper to stop the use of an enterprise name existing more than 5 years even if said name constitutes infringement or unfair competition against a prior trademark. Roy Liu, Partner Lifang & Partners Guangzhou office Tel: 86-20-87583535 Fax: 86-20-87583005 Email: royliu@lifanglaw.com ISSUE 7.5
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Shaanxi >>
Zhonglun W&D becomes third Beijing firm in Taiyuan Z honglun W&D has launched its second domestic office this year (after opening in Wuhan in January), this time in Taiyuan, Shaanxi province. The new office becomes the firm’s sixth domestic branches. The Taiyuan office has five partners – Liu Yindong, Ji Yunfeng, Zhang Qiufeng, Deng Jiancheng and Hao Xiaoming – and 20 lawyers. All partners and lawyers joined from Shaanxi Cheng Cheng law firm, which is based in Taiyuan with a solid track record advising on real estate and construction-related issues and
projects. Liu Yindong and Ji Yunfeng previously served as Cheng Cheng’s managing and deputy managing partners respectively. Given that only two Beijng firms – Kangda and Xinmin – and no Shanghai firms have launched offices in Taiyuan, the market remains relatively untapped. The Taiyuan branch is part of Zhonglun W&D’s national expansion plans, especially in the outer regions. It already has international offices in London, Paris, Riyadh and Lyon. ALB ►► Zhonglun W&D domestic office openings Location Beijing (headquarters) Chengdu Shijianzhuang Tianjin Shanghai Wuhan Taiyuan
Year established 1992 2007 2007 2007 2008 2010 2010
No. of partners 18 6 3 7 6 2 5
►► Taiyuan legal market – the numbers • 116 law firms, 1,288 lawyers • 1 lawyer to 1,692 citizens in Shanghai • 1 lawyer to 2,650 citizens in Taiyuan
中伦文德进驻太原
继
今年一月在武汉成立分所后，中伦文德近 日又在山西省太原市成立一家新分所。太 原新分所成为该所在国内的第六家分支。 太原分所拥有五位合伙人，他们分别是刘银 栋、冀云峰、张秋峰，以及20位专职律师。所有 合伙人及律师均来自山西成诚律师事务所，该律 所为太原本地所，且在房地产和建筑相关事务及 项目咨询方面具有丰富经验和客户基础。刘银栋 律师和冀云峰律师此前分别为成诚的主任合伙人 及副主任合伙人。 鉴于仅有三家北京律所，包括康达和大成已在 太原成立分所，尚无上海律所在太原开设分所， 因而市场格局仍处于相对初级阶段。 太原分所是中伦文德国内扩展计划的一部分， 尤其是新兴地区扩展计划的一部分。中伦文德已 在伦敦、巴黎、利雅得和里昂设立了国际分所。
MARTIN HU & PARTNERS
胡 光 律 师 事 务 所
Martin Hu & Partners maintains
both the international level of professional disciplines and the on-the-ground understanding of Chinese markets and extensive knowledge of industry-specific issues needed to handle complex cross-border transactions involving China.
Attorneys at Martin Hu & Partners (MHP Law Firm) have long been retained by well-known multinational companies and recognized by legal communities for their professional, efficient and often innovative services for clients since 1999.
Corporate and Commercial
Capital Market
Litigation and Arbitration
Mergers & Acquisitions
Education
Intellectual Property
Employment and Labor
Tax Law
Real Estate
www.legalbusinessonline.com
Contact Us MARTIN HU & PARTNERS Attorneys at Law 19th Floor, Yongda International Tower 2277 Longyang Road, Shanghai 201204 Tel.: +86 21 5010 1666 Fax: +86 21 5010 1222 E-mail: info@mhplawyer.com Website: www.mhplawyer.com
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►► Promotions Name
Firm
Title
Practice
Location
Feng Xiaoyi
Grandall
Partner
Corporate, finance, FDI, M&A
Beijing
May Tai
Herbert Smith
Partner
Arbitration
Shanghai
Jem Li
Cadwalader, Wickersham & Taft
Partner
Corporate M&A
Beijing
Sun Zuan
Yongheng Partners
Partner
Corporate, VC and dispute resolution
Nanjing
Baldwin Cheng
White & Case
Partner
Finance and restructuring
Beijing
►► Lateral hires Name
Leaving
Joining
Practice
Location
Rupert Li
Clifford Chance
King & Wood
International business
Hong Kong, Beijing
James Zhu
Perkins Coie
Jun He
IP
Beijing
Steven Cui
Jones Day
Jun He
IP
Beijing
Ran Ruixue
East Associates
Jun He
International trade
Beijing
Roger Peng
Hogan & Hartson
Paul Hastings
M&A, PE, VC
Beijing
Nancy Zhang
Kingfield
JT&N
International trade, real estate
Beijing
Arthur Mok
Hogan & Hartson
Ropes & Gray
PE, M&A
Shanghai
Zoe Wang
Perkins Coie
Jun He
IP
Shanghai
Lynn Yang
Allen & Overy
Norton Rose
Corporate and insurance
Shanghai
Chen Le
Shanghai FXJ
Llinks
Taiwan trade, dispute resolution
Shanghai
Steve Yu
Eversheds
CMS China
IP
Shanghai
Maurice Hoo
Paul Hastings
Orrick
PE
Hong Kong
Joe Sevack
Paul Hastings
Troutman Sanders
Securities, corporate governance
Hong Kong
Wang Hong
Jiangsu Sundy
Yongheng Partners
Real estate
Nanjing
Kingfield
JT&N
JT&N appoints new senior partner Nancy Zhang, along with a team of lawyers, has recently left Kingfield Law Firm for Jincheng Tongda & Neal (JT&N). Zhang becomes senior partner at JT&N and her team joins the Nancy Zhang firm’s real estate practice, adding a number of international clients to the roll. Prior to Kingfield, Zhang had also practiced with Hylands and Lehman, Lee & Xu. Zhang chose to leave Kingfield in view of the increasing competition between domestic firms. “Competition in the legal industry will peak within the next 5-10 years and evidently, small-scale domestic firms like Kingfield will have a competitive disadvantage,” said Zhang. The appointment is also seen as Zhang’s breakaway from the decision by Kingfield to merge with Dacheng. Dacheng’s absorption of the firm will include senior partners Zhang Shuzhen, Tian Hui, Wang Yingbo and senior counsel Tian Hong. Although Dacheng is the largest firm in China by headcount, Zhang chose to join JT&N for its higher business profile amongst international clients.
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资深房地产团队加盟金诚同达
张莉萍及其律师团队近期已离开乾丰律师事务所，加 入金诚同达律师事务所。 张律师担任金诚同达的高级合伙人，其团队也加入了 金诚同达房地产业务部，为该律所带来了大量国际客 户。进入乾丰之前，张律师曾在李文律师事务所工作。 考虑到国内律所之间的竞争日益激烈，张律师选 择离开乾丰。她表示：“在未来五至十年内，法律行业 的竞争将达到顶峰，乾丰等国内小型律所可能不具 备竞争优势”。 该任命也可被视为张律师从乾丰与大成合并决策 中退出。大成与乾丰的合并包括吸纳高级合伙人张 淑珍、田辉、王英波及高级顾问田鸿。尽管就职员人 数而言，大成可谓是中国规模最大的律所，但张律师 选择加盟金诚同达的原因是后者在国际客户中拥有 更广泛的业务范围。
East Associates
Jun He
Jun He adds international trade partner Following the joining of Zhou Yong as counsel in its international trade practice group earlier this year, Jun He has added additional capabilities to the practice group. The firm has recently hired Ran Ruixue, formerly a partner with East Associates, as partner in Beijing. Ran is admitted in both China and the US, and
is one of few PRC lawyers experienced in the field of a ‘US Section 337’ investigation. She has represented clients in several of these cases such as Ink cartridge, l-lysine and floor board investigations. Ran Ruixue She also offers advice and client services relating to IP protection and IP disputes in China, and CDMrelated matters.
君合新增国际贸易合伙人
于今年年初吸纳周勇为国际贸易业务团队顾问后，君 合国际贸易业务团队的其他能力得以加强。该律所近 期聘请冉瑞雪（曾为天达律师事务所合伙人）为北京 总部合伙人。 冉律师是拥有美国337调查案件实务经验的为数 不多的中国律师之一。她曾代理过多宗美国337调 查案件（墨盒、赖氨酸及地板调查等）。她还为中 国的知识产权保护、知识产权纠纷及清洁发展机制 (CDM)有关事宜提供法律意见和服务。
Shanghai FXJ
Llinks
Cross-straits work drives Llinks appointment Llinks is focused on Taiwan trade and dispute resolution work in its recent appointment of Chen Le as partner along with a team of key litigation and arbitration experts. Chen left Shanghai FXJ Law Firm, where she practised for eight years and was a director for two, to join Llinks. She will lead the firm’s Taiwan-related legal services team. Aware of growing trade between China and Taiwan, Llinks believes that Taiwan-related legal services will soon become a specialised field of advice, with increasing investments in both regions prompting more interest in rights protection and investment opportunities. “Having worked with Taiwanese clients over the past two years, I will help to develop Taiwan-related legal advice at Llinks, especially for finance and venture capital projects,” said Chen.
新合伙人加入通力
通力律师事务所于近期任命陈乐为合伙人，并吸纳其 带领的关键诉讼和仲裁专家团队，同时加强其在涉台 贸易和纠纷解决领域的实力。陈律师曾在上海傅玄杰 律师事务所工作八年，期间担任了两年的主任，现已离 开该律所转投通力麾下。她将领导该律所的涉台法律 服务团队。 鉴于中国与台湾之间的贸易日益增加，加上两地的 投资与日俱增，激起更多对权利保护和投资机遇的 兴趣，通力相信涉台法律服务不久将成为一个专业 的法律意见领域。陈律师表示：“过去两年里，我一直 与台湾客户合作，我将帮助通力发展涉台法律意见 领域，尤其是金融和风险资本项目方面。”
ISSUE 7.5
NEWS | news >>
Jiangsu Sundy
Yongheng Partners
Yongheng Partners takes two to partnership Former executive partner at Jiangsu Sundy Law Firm, Wang Hong has recently joined newly established Jiangsu firm Yongheng Partners as partner. He specialises in real estate and provide services to long-term clients such as Nanjing Urban Construction & Development, Nanjing Qinhuaihe Construction Development, Nanjing Chuangning Industry Development, Nanjing Public Station Construction & Development and the Bank of Communications (Jiangsu). At the same time, the firm has promoted corporate lawyer Sun Zuan to partner. Sun joined Jiangsu FD Yongheng Law Firm Wang Hong in 2004 and followed a group of partners include Li Min and Chen Yingning as they splintered away to set up Yongheng Partners in May last year. Sun also serves as the deputy secretary-general of the Nanjing High-Tech Experts Association.
永衡昭辉任命两名合伙人
江苏圣典律师事务所前执行合伙人王宏近期加盟了新 成立的江苏永衡昭辉律师事务所，担任合伙人。王律师 专攻房地产领域，并为南京建设发展集团有限公司、南 京秦淮河建设开发有限公司、江苏创宁实业发展有限 公司、南京公用场站建设发展有限责任公司等多家大 中型房地产企业的常年法律顾问。 同时，该律所还晋升公司业务律师孙钻为合伙人。 孙律师于2004年加入江苏法德永衡律师事务所，随 后于去年五月与黎民、陈应宁等合伙人一起离开该 律所，成立永衡昭辉律师事务所。他长期为多家外资 公司和国内大型企业提供综合性法律服务，同时担 任南京高新技术人才协会副秘书长。
Allen & Overy
Norton Rose
One more for China in Norton Rose’s Shanghai team Former Allen & Overy of counsel Lynn Yang has recently joined Norton Rose’s Shanghai office as corporate and insurance partner. She will commence her Lynn Yang partnership in July 2010. Norton Rose officially merged with Deacons Australia earlier this year (the deal did not include Deacons Hong Kong) which has helped Norton Rose resource its Asian ambitions. David Stannard, head of Norton Rose’s Asia practice, notes that Yang’s appointment is part of the firm’s aggressive business strategy for the AsiaPacific region. The firm launched its Asian hiring spree last month, offering up to five banking and corporate positions for its Beijing office. www.legalbusinessonline.com
诺顿罗氏上海团队再添一名合伙人
前安理律师事务所法律顾问Lynn Yang近期加盟诺顿 罗氏上海办事处，担任企业和保险业务的合伙人。 今年年初，诺顿罗氏与澳大利亚的近正式合并（该 交易不包括香港的近），为诺顿罗氏在亚洲大展宏图 提供资源。 诺顿罗氏亚洲业务部主管David Stannard指出， 任命Yang律师是该律所进军亚太地区业务战略的 组成部分。该律所于上个月开始举办亚洲招聘会，律 所的北京办事处提供多达五个银行业和企业领域 职位。
Hogan & Hartson
Ropes & Gray
Ropes & Gray gains Hogan Shanghai MP Hogan & Hartson’s former Shanghai managing partner Arthur Mok has joined Bostonheadquartered Ropes & Gray as a partner in the firm’s private equity and life sciences practices. His departure from Hogan took place two weeks before the Hogan Lovells merger completed on 1 May. The main reason behind the move, he says, was the better compatibility between his practice focus and Ropes & Gray’s. “Ropes & Gray is a very different law firm from Hogan Lovells. The firm is much more focused on private equity, M&A and life sciences, the areas where I specialise. And they have plans to expand in China, so the timing is good for me to join,” said Mok. Mok’s appointment with Ropes & Gray will not only help increase the firm’s offering to clients with interests in China but also expedite the firm’s plan to open a new office in Shanghai. He helped launch Hogan’s Shanghai office in 2004 and took on the role of the firm’s Shanghai managing partner in 2009. A number of associates will join him from Hogan. Prior to the establishment of the Shanghai office, they will be working out of the firm’s Hong Kong office, which was opened in 2008, while Mok will be based in the Washington DC office and travel frequently to the region.
Ropes & Gray猎得霍金•豪森上海管理合伙人
霍金•豪森律师事务所前任上海管理合伙人莫雅德 (Arthur Mok)加盟总部位于波士顿的Ropes & Gray，担 任私募投资和生命科学业务部合伙人。霍金路伟于5月 1日完成合并，莫律师在此前两个星期离开。 他表示离开最主要的原因是他的业务专长更适合 Ropes & Gray的业务。“Ropes & Gray与路伟迥然 不同。Ropes & Gray更专注于私募投资、并购及生 命科学领域，而这些正是我擅长的领域。另外，他们 计划在中国发展壮大，因此我加入的时间刚刚好。” 莫律师如此表示。 Ropes & Gray对莫律师的任命不仅能帮助律所 增加向有意在中国发展的客户提供服务，而且能推 动在上海设立新办事处的计划。他协助霍金•豪森于 2004年在上海设立办事处，并于2009年担任该律所 上海办事处的管理合伙人。
许多来自霍金•豪森的同事将跟随莫律师。建立上 海办事处之前，他们将着手发展该律所的香港办事 处，该办事处已于2008年开幕，莫律师将以华盛顿特 区办事处为基地，并经常访问有关地区。
Hogan & Hartson
Paul Hastings
Paul Hastings gains Hogan’s Beijing MP Paul Hastings has appointed former managing partner of Hogan & Hartson’s Beijing office, Roger Peng, as partner in its Beijing office. Peng will work on M&A, PE, venture capital and commercial transactions, with a particular focus on the telecommunications, media and technology industries. Peng believes that the firm’s collaboration culture and level of business orientation can help take his own practice to a higher level. “These attributes will help overcome the challenges ahead and will make the most significant difference to my career at this stage,” said Peng. “Challenges are inevitable, given that we are in an evolving and Roger Peng ever more competitive market,” he added. Peng’s appointment came after the firm lost Hong Kong partner Joe Sevack to Troutman Sanders and China PE practice head Maurice Hoo to Orrick.
普衡猎得霍金•豪森北京管理合伙人
普衡任命霍金•豪森北京办事处前任管理合伙人Roger Peng为其北京办事处的合伙人。Peng律师将从事并 购、私募投资、风险资本及商业交易等领域，特别专注 于电信、媒体和技术领域。 Peng律师相信该律所协同合作的文化和业务定位 水平有助于推动自身业务水平更上一层楼。Peng律 师表示：“这些特质将有助于战胜未来的挑战，并使 我现阶段的职业生涯发生显著的变化。”他还说：“由 于我们处于一个正在发展、竞争更加激烈的市场，因 此挑战是不可避免的。” 该律所任命Peng律师之前，香港合伙人Joe Sevack（加盟长盛）及中国私募投资业务主管 Maurice Hoo（加盟奥睿）相继离开。
Eversheds
CMS China
CMS China snitches Eversheds IP partner for new sectoral focus Steve Yu has left his partner position at Eversheds and joined CMS China as partner and head of IP in its Shanghai office. Yu brings along years of experience advising clients on cross-border IP licensing, establishment and operation of R&D centres, IP portfolio management, IP due diligence and enforcement of IP rights in civil and criminal actions. “We now see IP issues in almost every corporate transaction as well as all stages of doing business in China, and IP
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NEWS | news >>
infringement remains to be one of the major concerns for western companies operating in China.”
Orrick’s global corporate head, Don Keller, said the appointment will help his firm focus on international PE transactions while retaining a focus on Asia.
希汇中国挖角安睿，聚焦新 领域
普衡中国私募投资主管加盟奥睿
Steve Yu卸任安睿律师事务所合伙 Steve Yu 人职务，加盟希汇中国，担任其上海 办事处合伙人兼知识产权主管。 Yu律师经验丰富，历年来为客户提供法律意见，主 要涉及跨境知识产权许可、研发中心的设立和运营、 知识产权组合管理、知识产权尽职审查及在民事和 刑事诉讼中行使知识产权权利。Yu律师表示：“目前， 知识产权问题在中国的每项企业交易，以及开展业 务的所有阶段中几乎随处可见，知识产权侵权仍是来 华经营的西方公司最主要的忧虑之一。”
Paul Hastings
Orrick
Paul Hastings loses China PE head to Orrick The head of Paul Hastings’ China PE practice Maurice Hoo has left the firm to become the co-head of global PE for Orrick in Hong Kong. Hoo will share the role with Orrick’s London partner Peter O’Driscoll. He is expected to bring his clients with him, among which are PE firm Warburg Maurice Hoo Pincus and AIG Investments.
普衡中国私募投资业务部主管Maurice Hoo离开东家， 转投奥睿香港办事处，担任全球私募投资联席主管。 Hoo律师将与奥睿的伦敦合伙人Peter O’Driscoll 联合担任该职务。预期他将为律所带来他的客户，其 中包括私募投资公司华平投资和AIG友邦投资。奥 睿全球企业主管Don Keller表示，该任命有助于其 律所专注于国际私募投资交易，同时专注于亚洲。
Paul Hastings
Troutman Sanders
Troutmans raids Paul Hastings to build securities practice Joe Sevack has joined the Hong Kong office of Troutman Sanders as a partner in its securities and corporate governance practice group. Sevack comes to the firm from Paul Hastings, where he was a partner for nearly four years; for six years prior to that he was a partner at Freshfields in Hong Kong. Sevack says that renewed investor confidence in high-yield debt should see a number of new deals come to market in the next few months.
长盛挖角普衡，发展证券业务
Joe Sevack加盟美国长盛香港办事处，担任证券及 企业管治业务团队合伙人。Sevack从普衡转投该律
所，他曾在普衡担任合伙人近四年（2006年至今）； 此前六年，他是香港富而德的合伙人。 Sevack表示，未来几个月中，投资者在高收益债券 中的信心重塑，大量新交易将涌向市场。
Grandall
Grandall Beijing admits new partner Grandall Beijing office has promoted capital markets lawyer Feng Xiaoyi as partner. Feng has been practising law for more than eight years, and has been involved in many IPOs, power and infrastructure constructions, foreign investments, and CDM projects. Prior to joining Grandall Beijing, she worked as an in-house counsel at Peking University Founder Group.
国浩北京晋升资本市场律师为合伙人
国浩北京办事处晋升其资本市场律师冯小奕为合伙 人。冯律师已有超过八年的执业经验，并从事多项 首次公开招股、能源和基础设施建设、外来投资及 CDM项目。加入国浩北京之前，她在北京大学方正 集团担任公司法律顾问。
Clifford Chance
CCs promotes one to partnership Clifford Chance has elected Tim Wang to the partnership in Beijing. Wang is one of the five newly
Firm Profile
Zhonglun W&D
P
Law of the PRC on Foreign-invested Partnerships: A Significant Milestone for the Development of Foreign Investment Private Equity Funds in China
artnership is one of the most important organizational forms of private equity funds. Though Law of the PRC on Partnerships has been generally implemented, before March 1st 2010, there was no relevant law specifically regulating the foreign-funded partnerships, which made the establishment of foreigninvested private equity funds lack of legal basis in China. Recently, the Management Measures on Foreign Enterprises or Individuals Founding Partnership Enterprises in China (Decree No.567 of the State Council) and the Management Measures on Registration of Foreign-invested Partnership Enterprises (Document No.47 of SAIC) are promulgated by Chinese governments. These two laws, coming into effect on March 1st, 2010, provide important legal basis not only for the foreign companies or individuals who are keen to carry on domestic investment with the form
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of partnership, but also for the establishment of foreign-invested private equity funds in partnership within the PRC Mainland. According to the laws and regulations, a registration system, rather than a customary examination and approval system, shall be applied to fund a foreign-invested partnership enterprise. However, this kind of foundation still shall be in line with the foreign investment industrial policies of the PRC. While a foreign-funded partnership is established, tax revenue, foreign exchange, customs and other formalities shall be gone through. Foreign-funded partnerships include foreign-funded general partnership (including special general partnership) and foreign-funded limited partnership. The implementation of the Law of the PRC on Foreign-invested Partnerships and its relevant laws and regulations, propels foreign investment in private equity funds in partnership within China Mainland. On
March 3rd, 2010, “the Carlyle&Fosun Fund” in partnership, whose business license was issued by Shanghai Administration of Industry and Commerce (SHAIC), was established jointly by the Carlyle Group, a well-known international investment fund, and the Fosun Group, a famous domestic enterprise. In view of a great growth potential of China’s economy, many noted international private equity funds are considering setting up RMB denominated private equity funds in partnership directly in China. Contact Details: Dr. Wang Hao, Senior Partner 19/F Golden Tower, No.1, Xibahe South Road, Chaoyang District, Beijing, 100028, P.R.C Tel: 86-10-6440 2832 / 86-10-13801167481 Fax: 86-10-6440 2915 / 86-10-6440 2925 www.zhonglunwende.com
Dr. Wang Hao
ISSUE ISSUE 7.5 7.5
NEWS | news >>
promoted partners in Asia. A PRC national, Tim has advised on many of the headline China deals in recent years, including Chinalco’s stake in Rio Tinto and the IPO of China Minsheng Bank, the largest offering on the Hong Kong Stock Exchange in 2009.
高伟绅晋升一名合伙人
高伟绅甄选Tim Wang为北京办事处合伙人。Wang 律师是亚洲新近晋升的五名合伙人之一。 作为中国公民，Tim近年来在众多主要中国事务中出 谋划策，其中包括中国铝业注资力拓，以及2009年香 港交易所最大的招股，中国民生银行首次公开招股。
Herbert Smith
Herbies makes Shanghai lawyer partner Shanghai arbitration lawyer May Tai has been admitted to Herbert Smith’s partnership, as part of the firm’s annual partnership exercise. Tokyo disputes lawyer Gavin Margetson and Singapore energy lawyer Lewis McDonald are the two other lawyers in its Asia offices have been made partners. Currently, the firm has 272 partners globally.
史密夫晋升上海律师为合伙人
作为史密夫律师事务所年度合伙关系活动的一部分， 上海仲裁律师戴枫媚被任命为律所合伙人。东京的纠 纷律师Gavin Margetson和新加坡的能源律师Lewis
www.legalbusinessonline.com
McDonald成为律所亚洲办事处另外两位晋升合伙 人的律师。目前，该律所在全球拥有272名合伙人。
Cadwalader
White & Case promotes B&F expert White & Case bank finance and restructuring counsel, Baldwin Cheng, has recently been promoted to partner and relocated from Hong Kong to Beijing. He joined the firm in 2008 after spending three years working in London. In Beijing, he will continue to advise clients in Hong Kong and Shanghai as part of the firm’s integrated Greater China finance practice. His move to Beijing is also part of the embattled firm’s continuing efforts to place both English and US qualified lawyers throughout key Asian jurisdictions. But in recent times it has been losing partners as fast as it can make them up.
Cadwalader promotes M&A lawyer to partner Cadwalader, Wickersham & Taft has recently promoted Jem Li, a lawyer in the firm’s corporate M&A department, to partner in its Beijing office. Since 2004 Li has practised exclusively in China, working on a wide range of cross-border transactions in Asia. In recent years, Li has become particularly active in handling large and complicated outbound M&A and JV transactions involving mining Jem Li assets outside of China. Prior to joining Cadwalader, he worked in a few other US law firms, including Cravath, Swaine and Moore. After spending about 20 years in the US, Li returned to China to practice law in 2004.
伟凯提升银行业与金融专业律师
凯威莱德提升并购律师为合伙人
White & Case
伟凯银行金融及重组顾问Baldwin Cheng近期被提升 为合伙人，并从香港调往北京。他于2008年加入该律 所，此前在伦敦工作3年。 作为律所大中华区综合金融业务的一部分，他将在 北京继续为香港和上海的客户提供法律意见。 律所致力于使英美合资格律师遍布亚洲关键司法 管辖区，而将他调到北京正是该不懈努力的一部分。 然而，近期该律所失去与新增合伙人的速度一样。
凯威莱德近期提升其企业并购部门律师Jem Li为其 北京办事处的合伙人。 自2004年以来，Li律师在中国专门从事律师工作， 专注于一系列亚洲的跨境交易。近年来，Li律师积极 投身于处理大型复杂中国境外矿产并购和合资交易。 加盟凯威莱德之前，他曾在其他数个美国律所工作， 包括Cravath, Swaine & Moore。在美国度过约20年 后，Li律师于2004年回中国从事律师工作。
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EVENTS | China Law Awards >>
►► DEAL AWARDS CATEGORIES Award
Winner
DEBT MARKET DEAL OF THE YEAR
PRC Government RMB bond Issue Sinopec - Addax Petroleum Acquisition China Minsheng Bank IPO GCL Poly - Jiangsu Zhongneng Acquisition Glorious Property Holdings Restructuring
ENERGY & RESOURCES DEAL OF THE YEAR EQUITY MARKET DEAL OF THE YEAR WESTLAW CHINA AWARD M&A DEAL OF THE YEAR KNIGHT FRANK AWARD REAL ESTATE & CONTRUCTION DEAL OF THE YEAR CHINA DEAL OF THE YEAR
PRC Government RMB bond Issue
►► IN-HOUSE AWARDS CATEGORIES Award
Winner
BANKING & FINANCIAL SERVICES IN-HOUSE TEAM OF THE YEAR JADE & FOUNTAIN AWARD INVESTMENT BANK IN-HOUSE TEAM OF THE YEAR CHINA LEGAL CAREER AWARD FOREIGN COMPANY IN-HOUSE TEAM OF THE YEAR CHINESE COMPANY IN-HOUSE TEAM OF THE YEAR MWE CHINA LAW OFFICES AWARD CHINA IN-HOUSE TEAM OF THE YEAR
ICBC Morgan Stanley
COSCO Pacific
China Eastern Airlines Morgan Stanley
►► FIRM AWARDS CATEGORIES Award
Winner
BANKING LAW FIRM OF THE YEAR DISPUTE RESOLUTION LAW FIRM OF THE YEAR INSOLVENCY & RESTRUCTURING LAW FIRM OF THE YEAR INSURANCE LAW FIRM OF THE YEAR INTELLECTUAL LAW FIRM OF THE YEAR SHIPPING LAW FIRM OF THE YEAR TAX & TRUSTS LAW FIRM OF THE YEAR RISING LAW FIRM OF THE YEAR BOUTIQUE LAW FIRM OF THE YEAR OFFSHORE LAW FIRM OF THE YEAR WEST CHINA LAW FIRM OF THE YEAR NORTH EAST CHINA LAW FIRM OF THE YEAR ZHEJIANG LAW FIRM OF THE YEAR JIANGSU LAW FIRM OF THE YEAR TIANJIN LAW FIRM OF THE YEAR SHENZHEN LAW FIRM OF THE YEAR HONG KONG LAW FIRM PRC OFFICE OF THE YEAR GUANGZHOU LAW FIRM OF THE YEAR SHANGHAI LAW FIRM OF THE YEAR BEIJING LAW FIRM OF THE YEAR JAPANESE LAW FIRM OF THE YEAR
Commerce & Finance AllBright
KOREAN LAW FIRM OF THE YEAR SINGAPORE LAW FIRM OF THE YEAR MANAGING PARTNER OF THE YEAR INTERNATIONAL LAW FIRM OF THE YEAR CHINA LAW FIRM OF THE YEAR
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King & Wood King & Wood CCPIT Global Llinks Run Ming Shanghai ForTran Conyers Dill & Pearman Tahota Deheng Zhejiang T&C JC Master Winners Grandall Deacons Guangda Fangda Jun He Anderson Mori & Tomotsune Bae Kim & Lee WongPartnershp King & Wood - Wang Ling Freshfields King & Wood
W
hile 2009 was a trying year of corporate collapse and market melancholy, a large number of big-ticket, high-profile, innovative and complex deals nevertheless took place and many of them were nominated and shortlisted for this year’s awards. The US$3.4bn GCL-Poly-Jiangsu Zhongneng acquisition and Sinopec’s US$8.8bn takeover of Addax Petroleum, two of the best deals, took home the M&A Deal of the Year and Energy & Resources Deal of the Year awards respectively. The in-house legal team of China Eastern Airlines also made their mark on the night, taking out the Chinese Company In-House Team of the Year, not least because of their work on the Shanghai Airlines merger and headline RMB7bn fund raising activity through A-share and H-share equity placement. King & Wood was again the big winner overall, with the firm taking home a total of five trophies across a number of categories, including China Law Firm of the Year. International firms Freshfields and Conyers Dill & Pearman were also big winners, claiming three awards each. Four categories made their debut at this year’s Awards. Shanghai ForTran claimed the award for Boutique Law Firm of the Year for their focus and expertise in taxation law. Anderson Mori & Tomotsune,
Bae Kim & Lee and WongPartnership, meanwhile, were recognised as having the best China operations of firms headquartered in Japan, Korea and Singapore respectively. The finalists in each deal category were assessed against a range of criteria – size, complexity, breadth and innovation. Finalists in each firm and in-house category, meanwhile, were recognised for their outstanding client service as well as their ability to combine rigorous analysis with sound judgement when acting on important transactions, projects and cases throughout calendar year 2009. ALB, together with all the award sponsors, would like to once more congratulate not only all the winners but also all the finalists for the excellence of work they have delivered under the most testing of market conditions. ALB ►► The ALB Law Awards series ► – global recognition for► Asia’s legal excellence ALB China Law Awards Shanghai – 16 April 2010 ALB Australasian Law Awards Sydney – 13 May 2010 ALB Japan Law Awards Tokyo – 28 May 2010 ALB SE Asia Law Awards Singapore – 4 June 2010 ALB Hong Kong Law Awards Hong Kong – 10 September 2010
www.albawards.com ISSUE 7.5
EVENTS | China Law Awards >>
The winners revealed!
Many of the most important members of China’s legal profession were in attendance at this year’s ALB China Law Awards, to see the best and brightest talent in the country take the stage to receive their richly deserved trophies. Here are all the winners across the 37 Award categories
deals of the year DEBT MARKET DEAL OF THE YEAR
ENERGY & RESOURCES DEAL OF THE YEAR
WINNER
WINNER
►► PRC Government RMB bond Issue
►► Sinopec-Addax Petroleum Acquisition
• Datang Wind Farm Financing • Shangdong Nuclear Power Project Financing • Sinopec SABIC Tianjin JV Financing
EQUITY MARKET DEAL OF THE YEAR WINNER ►► China Minsheng Bank IPO
L-R: William Liu, Linklaters, He Fan, Haiwen
Firms: Haiwen & Partners; Linklaters; Sidley Austin Banks: Bank of China; Bank of Communications Why: • RMB6bn debut public offering and institutional placement by PRC government of RMB-denominated bonds in three tranches • first time PRC central government has issued Yuandenominated treasury bonds outside mainland – “major step in Hong Kong’s development as the offshore RMB settlement centre for the PRC” – and China’s first offshore bond issue since 2004 • “dealer exemption” was invoked for first time in 20 years – hence much shortened timetable but additional legal and regulatory risks which required mechanics to be put in place as part of contractual and due diligence arrangements to address them
Finalists • Greentown Tender Offer and Consent Solicitation • HSBC RMB Hong Kong bond issue • Sino-Forest Exchange Offer and Consent Solicitation • State Grid Corporation of China Enterprise Bond Offering www.legalbusinessonline.com
L-R: Jessica Yu, Vinson & Elkins; Chua Tju Liang, Vinson & Elkins; Paul Deemer, Vinson & Elkins; Jay Kolb, Vinson & Elkins
Firms: Fasken Martineau DuMoulin; Osler, Hoskin & Harcourt; Stikeman Elliot; Vinson & Elkins Banks: Credit Suisse ; RBC Capital Markets Why: • at US$8.8bn, largest overseas energy acquisition done by Chinese company to date; showed that Chinese energy companies have progressed to new level of capability in international acquisitions • extremely complex, involving public tender offer for shares listed on two stock exchanges, redemption of bonds listed in UK, negotiations regarding two large outstanding credit facilities, and other oil and gas, securities, and international legal issues; covered 26 different oil & gas assets and multiple companies spanning five countries across Africa and the Middle East, as well as China, HK, Canada, Switzerland • timing and confidentiality concerns posed by acquisition of public company presented challenges in terms of deadlines and restriction of access to the data room
Finalists • China Petroleum & Chemical Corporation Acquisition of Oil Industry Assets • CIC-Teck Resources Stake Acquisition • CNNC Sanmen Nuclear Power Project Phase I
L-R: Zhao Xiaohong, King & Wood; Alan Wang, Freshfields; Jean Thio, CC; Li Lin, USB Securities; Jimmy Leung, PWC; Charles Guan, Grandall
Firms: Clifford Chance; Freshfields; Grandall; King & Wood Banks: BOCI Asia; CICC; Hai Tong Securities; Macquarie Capital Securities; UBS Accountants: PwC Why: • US$3.9bn IPO second largest in Hong Kong in 2009 and one of few H-share IPOs of A-share listed companies; Minsheng is first and largest joint stock commercial bank in the PRC primarily founded by non-state-owned enterprises • first IPO of financial institution since world entered completely different macroeconomic and regulatory environment under GFC; hence many highly complex regulatory and disclosure issues challenged legal teams • took just over five-and-a-half months from kick-off to listing and just over three months from A1 filing to listing
Finalists • China Longyuan Power IPO • China Pacific Insurance IPO • China State Construction & Engineering IPO • Metallurgical Corporation of China IPO • Sands China IPO • Shanda Games spin-off IPO and NASDAQ Listing • Sinopharm H-Share IPO
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EVENTS | China Law Awards >>
WESTLAW CHINA AWARD M&A DEAL OF THE YEAR WINNER
• Ming An Privatisation • PetroChina–Singapore Petroleum acquisition • San Yuan –San Lu Acquisition • Shanda Interactive Entertainment –Hurray! acquisition • Yanzhou Coal Mining–Felix Acquisition
►► GCL Poly–Jiangsu Zhongneng Acquisition
KNIGHT FRANK AWARD REAL ESTATE & CONTRUCTION DEAL OF THE YEAR WINNER L-R: Heiner Braun, Freshfields; Yang Juan, Grandall; Jeff Layman, Milbank; Steven Robinson, Hogan & Hartson; Steven Yao, Thomson Reuters Legal
Firms: Allen & Overy; Conyers Dill & Pearman; Freshfields; Grandall; Hogan & Hartson; Milbank Tweed; Paul Hastings; Ropes & Gray Banks: First Shanghai Capital; HSBC; ICBC Accountants: Deloitte Why: • US$3.4bn merger between Chinese power supplier listed on HKSE and manufacturer of solar polysilicon wafers was one of the largest merger and acquisition deals in Asia this year; as part of the consideration for the acquisition, GCL-Poly issued US$325m in high-yield secured notes • required coordination and cooperation of large number of pre-IPO investors who were holding preferred shares, convertible notes and exchangeable notes, as well as a public shareholders’ approval process for GCL Poly; over 30 parties involved • whitewash application was made to SFC to avoid need to launch mandatory general offer pursuant to Rule 26 of Code on Takeovers and Mergers
►► Glorious Property Holdings restructuring Firms: Allen & Overy; Conyers Dill & Pearman; Mallesons Stephen Jaques; Maples and Calder; Paul Hastings; Zhong Lun Why: • RMB3.7bn deal involved multiple securities across many jurisdictions (such as PRC, Hong Kong, BVI and Cayman) • restructuring required additional security to be given, and such security were to be put into effect by the security trustee pursuant to POA’s authorising them to do so and upon instruction of the noteholders) upon certain triggering events occurring; this allowed for noteholders to be protected without jeopardising negotiations and entering into of certain side financing and S&P agreements which required noteholder consent
• Agile Property Senior Notes offering • Lehman / KPMG Workout • Swire Taikoo Hui Guangzhou Project • Tianjin Global Financial Centre Project • Tianjin Port Development
CHINA DEAL OF THE YEAR WINNER ►► PRC Government RMB bond Issue Firms: Haiwen & Partners; Linklaters; Sidley Austin Banks: Bank of China; Bank of Communications Why: Firms: Clifford Chance; Haiwen & Partners; Linklaters; Sidley Austin Banks: Bank of China; Bank of Communications Why: • RMB6bn debut public offering and institutional placement by PRC government of RMB-denominated bonds in three tranches • first time PRC central government has issued Yuandenominated treasury bonds outside mainland – “major step in Hong Kong’s development as the offshore RMB settlement centre for the PRC” – and China’s first offshore bond issue since 2004 • “dealer exemption” was invoked for first time in 20 years – hence much shortened timetable but additional legal and regulatory risks which required mechanics to be put in place as part of contractual and due diligence arrangements to address them
Finalists
Finalists • China Yangtze Power–China Three Gorges Asset Acquisition • COFCO and Hopu Investments in Mengniu
Finalists
L-R: Greg Knowles, Maples and Calder; Richard Hall, Conyers Dill & Pearman; Jenny Nip, Maples and Calder; Anthony Zhao, Zhong Lun; Fan Rong, Mallesons Stephen Jaques; Paul Hart, Knight Frank
• Greentown Tender Offer and Consent Solicitation • HSBC RMB Hong Kong bond issue • Sino-Forest Exchange Offer and Consent Solicitation • State Grid Corporation of China Enterprise Bond Offering
in-house awards BANKING & FINANCIAL SERVICES IN-HOUSE TEAM OF THE YEAR WINNER ►► ICBC
FINALISTS • China Construction Bank • Citi • CITIC • HSBC
• CICC • UBS
CHINA LEGAL CAREER AWARD FOREIGN COMPANY IN-HOUSE TEAM OF THE YEAR WINNER FINALISTS
JADE & FOUNTAIN AWARD INVESTMENT BANK IN-HOUSE TEAM OF THE YEAR
• B&Q • GCL-Poly Energy Holdings • GE
FINALISTS
Qiu Jincheng, COSCO Pacific
MWE CHINA LAW OFFICES AWARD CHINA IN-HOUSE TEAM OF THE YEAR WINNER
WINNER
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WINNER ►► China Eastern Airlines
• China Vanke • GD Midea Holding • Sinopec • Shanda
►► COSCO Pacific Zhai Yanjie, ICBC
CHINESE COMPANY IN-HOUSE TEAM OF THE YEAR
►► Morgan Stanley
►► Morgan Stanley
FINALISTS
FINALISTS
• Credit Suisse • Deutsche Bank • JPMorgan
• China Eastern Airlines • COSCO Pacific • ICBC
Qiu Jincheng, COSCO Pacific L-R: Scott Guan, Jade & Fountain; Alex Cheng, Morgan Stanley
ISSUE 7.5
EVENTS | China Law Awards >>
www.legalbusinessonline.com
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EVENTS | China Law Awards >>
FIRM AWArds Banking Law Firm of the Year
Dispute Resolution Law Firm of the Year
Insolvency & Restructuring Law Firm of the Year
WINNER
WINNER
WINNER
►► Commerce & Finance • maintains leading position in banking, involved in first public offering of a Chinese airline and a state-owned steel enterprise • extensively involved in corporate financing transactions in China, representing issuers or underwriters in hundreds of deals • noticeable deals include SinoForest Exchange Offer and Consent Solicitation, China State Construction & Engineering IPO, COFCO and Hopu Investments in Mengniu, and Agile Property Senior Notes offering
►► AllBright • has specialists that can advise on matters ranging from white-collar criminal defense to anti-trust and antidumping international disputes • high-profile matters in 2009 included the Danone-Wahaha shareholder dispute fiasco, in which the firm acted for KPMG • acted (and is still acting) in ongoing high-profile joint venture dispute that spun out in 2009 into litigation in Beijing and arbitration in Hong Kong
►► King & Wood • team mainly focuses on debtrestructuring practices and reorganisation of listed companies • in 2009 seven listed companies reorganised their affairs according to the Law of the PRC on Enterprise Bankruptcy; the team participated in five of them, involving Suntek Technology and Dandong Chemical Fibre
FINALISTS • Run Ming • Zhong Lun
FINALISTS • Dacheng • Deheng Law Firm • Jin Mao PRC Lawyers • King & Wood • Tiantong & Partners
FINALISTS • Global • Jun He • King & Wood • Zhong Lun
Zhao Xiaohong, King & Wood
Insurance Law Firm of the Year WINNER
Li Hui, Commerce & Finance
Qiu Suo, AllBright
►► King & Wood • represented most of China’s major insurance companies,
GUANGZHOU Add: 27/F, Dongshan Plaza 69 Xianlie Zhong Road, Yuexiu District Guangzhou 510095, P.R. China Tel: +86 20 8732 2666 or +86 20 8732 2669 Fax: +86 20 8732 2706
Guangda Law Firm is one of the major full service law firms in China. We have more than 250 lawyers and other professionals and have offices in Guangzhou, Beijing, Shanghai and Shenzhen. Guangda has established seven practice sections: 1) corporate and securities, 2) real estate and construction, 3) litigation and arbitration, 4) international business, 5) banking and finance, 6) IPR, and 7) general, with expertise in corporate and securities, real estate and construction, transnational investment, and litigation and dispute settlement. Guangda established the Sino-Global Law Alliance (SGLA) in September 2007 as a founder, together with one of the top ten international law firms, Lovell, and eight top domestic law firms in other major cities of China.
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BEIJING Add: Room 501B, Block A Haisong Building Tairan Ninth Road, Futian District Shenzhen 518040, P.R. China Tel: +86 10 8587 0068 Fax: +86 10 8587 0078 SHANGHAI Add: Room 802, Zhijun Building 1233 Xietu Road, Xuhui District Shanghai 200032, P.R. China Tel: +86 21 5150 2576 Fax: +86 21 5150 2817 SHENZHEN Add: Room 501B, Block A Haisong Building Tairan Ninth Road, Futian District Shenzhen 518040, P.R. China Tel: +86 755 3301 1168 Fax: +86 755 3301 1169
www.gdlawyer.com ISSUE 7.5
EVENTS | China Law Awards >>
including PICC, China Life, CPIC and China Re • also assisted a number of foreign insurers and foreign intermediaries in a wide range of projects, including, mergers and acquisitions, joint ventures, restructuring and reorganisation, financing, on and offshore public offerings, and regulatory compliance • high-profile projects included PICC’s restructuring and Alltrust’s attracting of foreign investment
FINALISTS
INTELLECTUAL PROPERTY Law Firm of the Year WINNER
FINALISTS • An, Tian, Zhang and Partners
www.legalbusinessonline.com
Tax & Trusts Law Firm of the Year
Shipping Law Firm of the Year WINNER
• Dacheng • Grandall
►► CCPIT • is the largest and oldest full-service IP law firm in China with over 470 staff, including more than 170 patent and trademark attorneys, with nearly 40 having lawyer’s qualifications as well as more than 80 patent engineers • main office is in Beijing; other offices in New York, Munich, Tokyo, Hong Kong, Shanghai and Guangzhou • firm provides prosecution, litigation, transaction and consultation services relating to patent, trademark, copyright, trade secret, trade dress, domain name, anti-unfair competition and other IP-related matters
• Hylands • Lifang & Partners • Liu, Shen & Associates • Longan
►► Global • has six partners specialising in maritime, shipping and related matters and four of the partners are listed on the panel of arbitrators with China Maritime Arbitration Commission • in 2009 the shipping teams handled more than three dozen maritime and shipping cases, including arbitrations before China Maritime Arbitration Commission and court actions before various maritime courts of the PRC Mainland • represents a major shipping company in arbitration proceedings against a voyage charterer before China Maritime Arbitration Commission for a US$1.3m claim for outstanding freight owed by the charterer to the shipping company as the owner of the vessel
FINALISTS Du Jingying, CCPIT
• Haitong & Partners • Sloma & Co • Wang Jing & Co
Zhang Yu, Global
WINNER ►► Llinks • team is composed of professionals from prestigious law schools and “Big Four” accounting firms, equipped with legal, tax and accounting knowledge as well as considerable taxation professional services experience • in 2009, the trust team advised the firm’s trust house clients on several major deals, including the first QDII product at trust market, securities-related trust products, PE-related trust products, and trust products with TOT structure • provided professional services of the highest calibre on these deals, combining technical excellence with commercial awareness and practical approaches to legal issues to help clients achieve their business goals
FINALISTS • Hwuason • JunZeJun • King & Wood • Shanghai ForTran
Clare Lu, Llinks
Rising Law Firm of the Year WINNER ►► Run Ming • finalist in this award last year and has had another year of strong growth both in terms of lawyer headcount, office space and clientele
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EVENTS | China Law Awards >>
• new partners include former Orrick IP lawyer Cheng Bing, former general counsel for Alstom China Charles Liang and former senior counsel at O’Melveny & Myers Kathy Yang • aviation practice led by executive partner Liu Yi continues to lead the field, having been instructed by longstanding clients to advise on several landmark cases. • Highlights include representing Airbus in the bankruptcy proceedings against East Star Airlines, the first airline declared bankrupt in China; representing SF Airlines for its purchase and subsequent passenger-to-freighter conversion of a Boeing 757-200 aircraft; and representing ICBC financial leasing company in the first tax-bonded aircraft lease of China
Firm” and gained Patent Agency awarded by the State Intellectual Property Office • Exceedon & Partners • Solton & Partners • Yunnan Ba Qian Law Group • Zhonghao
Wang Yadong, Run Ming
WINNER ►► Shanghai ForTran • Lawyers are experts on both law and tax with compound education backgrounds, as lawyers, CPAs and CTAs (certified tax agents) • Projects included short-term financing bills projects of Guotai Junan Securities and acquisition of Jiangwan Block of Xiamen C&D
Yan Xizhong, Shanghai ForTran
Offshore Law Firm of the Year
NorthEast China Law Firm of the Year ►► Deheng Law Firm • in 2009 business volume, revenues and tax paid increased 38.40%, 13.10% and 20% (comparing it with last year) respectively. • Annual revenue is RMB72m placing the firm first in Shandong for ten consecutive years • 66% of total revenue is from VIP accounts and regular customers with finance, real estate, foreign affairs, securities, investment, litigation, arbitration and corporate business. • 23% of total revenue from new clients • Dalian Zhiku • Kang Qiao • Liaoning Fada • Wang, Wu, Yang and Ma • Wincon
L-R: Hu Min, Deheng; Hu Xianming, Deheng
Zhejiang Law Firm of the Year WINNER
WINNER ►► Conyers Dill & Pearman • advises on the laws of Bermuda, British Virgin Islands, the Cayman Islands, Mauritius and Cyprus, focusing on the BRIC markets • has launched in Sao Paulo, Moscow and Mauritius over the past two years • 11 offices worldwide including Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Dubai, Hong Kong, London, Mauritius, Moscow, Sao Paulo and Singapore
FINALISTS L-R: Richard Hall, Conyers Dill & Pearman; Martin Crawford, Offshore Incorporations Group
West China Law Firm of the Year WINNER ►► Tahota • large law firm in China’s midwest named “Best National Law Firm”, has set up branches in Beijing, Shenzhen and Hong Kong • won the title for “10 Fastest Growing Law Firms in China” and “30 Fastest Growing Law Firms in Asia” • transformed specific general partner system in the firm and wiped out district restriction. Changed name to “Tahota Law
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L-R: Wesley Pan, Alpha & Leader; Yang Jianhong Tahota
FINALISTS
FINALISTS
• Appleby • Harneys • Ogier • Walkers
WINNER
WINNER
Boutique Law Firm of the Year
• Alpha & Leader • Sunshine • Tiantong & Partners
Tianjin Law Firm of the Year
FINALISTS
FINALISTS • GoldenGate • Han Kun • Jade & Fountain • Jin Mao PRC Lawyers • MWE China
• Jiangsu Co-Far • Jiangsu New Talent
►► Zhejiang T&C • leading law firm, even while confronting the challenge of reduced client demand and deal flow • dominant player in FDI, IPOs and corporate finance in the Yangtze River Delta region in 2009 • ranks at the fifth-fastest-growing law firms in China as evaluated by ALB magazine • awarded prizes by Hangzhou municipal government as one of the top service enterprises and also one of the 100 top competent groups for 2009 for its outstanding achievements in the legal service profession
►► Winners • engaged by Cargill (major international provider of food, agricultural and risk management products and services from the US) to represent it in L-R: Myles Seto, Deacons; its anti-trust business Simon Bai, Winners concentration filing with China regulatory authorities such as Ministry of Commerce and State Commission of Reform and Development • first anti-trust case handled by a law firm in Tianjin • entered into strategic collaboration agreements with Institute of Finance and Taxation of Nankai University and collaboration agreements on environment law with the law school of Nankai University in 2009
FINALISTS • Join & High • Zhang Ying
Shenzhen Law Firm of the Year WINNER ►► Grandall (Shenzhen) • under the leadership of executive partner Li Chun, who is president of the Shenzhen Bar, the Shenzhen office has sustained a leading role in transactional legal services • gained competitive edge by leveraging the firm’s new office in neighbouring Hong Kong • among the leaders in advising on SMEs listings, the capital markets group was increased by adding ten new partners and 30 more legal staff in 2009
FINALISTS • China Commercial • Guanghe • SD & Partners • Shu Jin • Sincere Partners
Kong Jia, Grandall
Hong Kong Law Firm PRC Office of the Year WINNER ►► Deacons
FINALISTS • Sunshine • Zhejiang Liuhe • Zhejiang Zeda
Patrick Wang, Zhejiang T&C
Jiangsu Law Firm of the Year Winner Myles Seto, Deacons, centre; and Deacons support team
►► JC Master • favourite local referral firm of a number of western and South-East Asian foreign law firms • member of International Alliance of Law Firms, played a dominant role advising on cross-border transactions, high-end corporate matters and projects in Jiangsu
FINALISTS • Fangben
James Xu, JC Master
• represents a number of Fortune 500 multinational companies in China, as well as domestic PRC businesses and Hong Kong companies • committed substantial resources to its China practice and covers a broad range of legal areas, from traditional FDI through to IP matters and arbitration proceedings • has a multi-lingual team that converses fluently in Mandarin, Cantonese and other Chinese dialects, as well as English and western languages ISSUE 7.5
EVENTS | China Law Awards >>
FINALISTS
FINALISTS
• Bird & Bird • JSM • Vivien Chan & Co
• AllBright • Chen & Co • Grandall (Shanghai) • Jade & Fountain • Jin Mao PRC Lawyers • Llinks • Shanghai Shenda Partners
Guangzhou Law Firm of the Year WINNER ►► Guangda • previous winner of this award, remains one of the top-tier firms active in Guangzhou • has increased its offering in international trade and investment with the appointment of several new partners including Kent Woo, who was previously a partner with Kingson, and Ling Na, a former partner of D&S • acted for a large number of international and national clients in high-end investment, transactions, and litigation and arbitration cases in Pearl River Delta region • legal counsel for 2010 Guangzhou Asian Games
FINALISTS • Alpha & Leader • C & I Partners • Guangdong Deliang • Guangdong Kings • Guangxin • Wang Jing & Co
L-R: Li Haibo, Winners; Qin Tao, Guangda
Shanghai Law Firm of the Year WINNER ►► Fangda Partners • Shanghai office has continued to have dominant market share in high-profile transactions
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Japanese Law Firm of the Year WINNER L-R: Zhang Yun, ALB; Zhang Wei, Luwan Justice Bureau
Beijing Law Firm of the Year WINNER ►► Jun He • represented many foreign clients in their business transactions in China • continually expanding client base includes some of the world’s largest multinationals, as well as many small-and mid-sized companies • winner of this category in 2008 • has advised on three finalist deals including HSBC RMB Hong Kong bond issue, Sinopec SABIC Tianjin JV Financing, and COFCO and Hopu Investments in Mengniu
FINALISTS • Commerce & Finance • Dacheng • DeHeng Law Office • Global • Guantao • Haiwen & Partners • King & Wood
►► Anderson Mori & Tomotsune • first existing firm to open Beijing office • has been devoted to longstanding China and Japan economic relationship for more than a decade • often represents Japanese companies and Chinese companies in various large M&A transactions, and also advised many Chinese companies in 2009, including China L-R: Hiroshige Nakagawa, Anderson Mori & Tomotsune Unicom, Baidu, Air China, Shenhua Energy, Bank of Communication, Shanghai Electric
FINALISTS • Mori Hamada & Matsumoto • Oh-Ebashi
Korean Law Firm of the Year WINNER
L-R: Liu Hongqiang, ACC; George Wang, Jun He
►► Bae, Kim & Lee • first Korean firm to establish a presence in China, opening its Beijing office in 2004 • has offices in both Beijing and Shanghai, with a full contingent of PRC and Korean lawyers. Seoul office has a permanent team of PRC lawyers, and the practice group advises on cross-border
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EVENTS | China Law Awards >>
corporate deals as well as regulatory matters and litigation in China • major projects include Guangzhou LCD Panel Project, a JV between LG Display and the Guangzhou city government for US$4bn in total investments (with initial registered capital of US$1.33bn
marketing and business development, knowledge management, training programs and HR • one of the firm’s top dealmakers, recognised numerous times for her role in complex transactions as well as her overall expertise in banking, aircraft finance and other asset finance matters
FINALISTS
FINALISTS
• Lee & Ko
• Dacheng – Wang Zhongde • DLA Piper – Liu Wei • Global – Liu Jinrong • Guantao – Cui Liguo • Jun He – Xiao Wei • Longan – Jiali Xu • Zhong Lun – Zhang Xuebing • Zhong Yin – Zhao Zenghai
Singapore Law Firm of the Year WINNER ►► WongPartnershp • in addition to the firm’s involvement in China Investment Corporation’s acquisition of a stake in Noble Group, its China practice group has been involved in deals across a spectrum of industries, including banking, real estate, education and retail • advised on awardwinning deals, including L-R: Joseph HE Jun, WongPartnership; acting for China Oilfield Qiu Suo, AllBright Services as Singapore counsel, relating to its acquisition of Awilco Offshore
FINALISTS • Drew & Napier
Managing Partner of the Year WINNER ►► King & Wood – Wang Ling • as managing partner has worked to help grow the firm to be widely recognised as one of the most highly-regarded Chinese law firms • works with the management team developing policies, long-term strategy and overview of the firm, particularly in developing business operations which include IT systems,
Paul Hart, Executive Director, Knight Frank Paul is a Chartered Surveyor with a broad base of experience covering valuation, property due diligence, retail and development consultancy. Based in Hong Kong for 20 years, he has extensive property experience in Greater China. Paul was appointed an Executive Director in 2004 and he is a member of Knight Frank’s Greater China Board overseeing Knight Frank’s delivery of real estate services to support
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WINNER ►► King & Wood • one of the largest firms in China with more than 800 partners and lawyers working across 16 offices • first PRC firm to have merged with a Hong Kong firm and acquired Hong Kong law capacities
International Law Firm of the Year WINNER ►► Freshfields • advised on 14 listings in 2009 including the five largest IPOs in Hong Kong – these are five of the world’s ten largest IPOs for the year • high-profile deals included Metallurgical Corporation of China and China Minsheng Banking Corporation • advised OCBC Bank on its US$1.46bn acquisition of ING Asia Private Bank from ING Bank and Danone in the most high-profile commercial dispute seen in the region
FINALISTS
Heiner Braun, Freshfields
• Davis Polk & Wardwell • DLA Piper • Latham & Watkins • Linklaters • Orrick, Herrington & Sutcliffe • Sullivan & Cromwell
SPONSORS
Knight Frank Knight Frank is the leading international property consultancy. The London-based firm, together with its New York-based global partner, Newmark Knight Frank, operates from 207 offices in 43 countries across six continents. More than 6,340 professionals handle in excess of US$886 billion worth of property annually. Knight Frank offices in Hong Kong, Beijing, Shanghai, Guangzhou and Macau offer professional services across a comprehensive portfolio including: acquisitions, sales & leasing; asset management & investment; building and facilities management; development consultancy.
China Law Firm of the Year
capital market and private equity transactions in Hong Kong and China. Paul is also an advisor to HSBC on the management of their Hong Kong Estate including the disposal of repossessed properties.
China Legal Career China Legal Career (CLC) is the leading legal recruiting firm that provides top quality services for foreign law firms and MNCs in China. As a member of Mlegal Group, CLC draws on its extensive international resources to serve the top echelon of the legal markets in the US (offices in San Francisco and Palo Alto), UK (office in London) and China (offices in Beijing and Shanghai). By operating internationally for 20 years and in China for 4 years, Mlegal/CLC has already built a network and reputation in the market as the #1 choice for clients and legal professionals when it comes to legal recruitment and career development. Frazer Xia, Founder and Managing Director, China Legal Career Founder and MD of CLC with 20 years business experience. He started his career in china when he returned to
L-R: Jin Liyu, King & Wood; Yu Tengqun, China Railway Group; Zhao Xiaohong, King & Wood
• outbound practice led by partner Xu Ping; international restructuring practice with partner Liu Yanling and Handel Lee has grown substantially • key representative projects this year included acting for China Unicom in introducing the iPhone to China; the Wahaha Danone settlement; the global offering of China Minsheng Banking Corporation and listing on the HKSE; PRC anti-trust approval for two high-profile offshore M&A transactions (Pfizer/Wyether and Fiat/Chrysler)
FINALISTS • AllBright • Dacheng • Grandall • Guantao • Jun He • Zhong Lun
China from his MBA study in the US in 1987. He was the EVP of a German MNC in Shanghai in the mid of 1990’s and a co-founder of Bexcel Management Consultants in 1998. In the early 2000’s he became the COO/CFO of an accounting/ERP company and the COO of a Cisco/ Time Warner invested company in Beijing, Frazer founded CLC in early 2006 and has extensive connections in the market with senior legal professionals. He holds a MBA from the University of New York in 1986. MWE China Law Offices MWE China Law Offices is a Chinese law firm with a seasoned and integrated professional team based in Shanghai licensed to practise in the People’s Republic of China. MWE China’s practice includes advising on all areas of Chinese and international law, and the Firm is able to effectively service clients and their expanding interests in China and beyond. MWE China Law Offices is strategically aligned with McDermott Will & Emery LLP, a leading international law firm of 1,000 lawyers with 16 offices in the United States and Europe, to provide global companies based within and outside of China superior global client service with access to leading lawyers within China and around the globe. John Huang, Managing Partner, MWE China Law Offices John Z.L. Huang is the founding partner of MWE ISSUE 7.5
EVENTS | China Law Awards >>
China Law Offices (MWE China) and serves as its managing partner. In brief, John focuses on creating practical comprehensive solutions for a diverse array of multinational corporate clients. Providing legal counsel in China for over 20 years, he has handled numerous landmark cross-border transactions and disputes for both Fortune 500 and well-known Chinese enterprises. John also has been nominated or has received several prestigious legal awards over the past 10 years, and he was named twice by ALB as one of the ‘Hot 25’ lawyers in China. Jade & Fountain PRC Lawyers Jade & Fountain PRC Lawyers has emerged as one of the premier law firms in China. Tracing its history back more than 20 years, Jade & Fountain’s lawyers have been regarded as extremely knowledgeable and well-versed in many legal areas and boast an acute understanding of both global trends and local conventions. Jade & Fountain’s philosophy is grounded in being responsive, resultdriven, and trustworthy in providing legal services to its clients. In 2009, Jade & Fountain has represented our clients in many high-profile projects, including advising on the Shanda Games’ Initial Public Offering (valued at over US$1billion), and also serving as counsel to GM in its 1% share transfer of Shanghai GM to SAIC.
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Scott Guan, Managing Partner, Jade & Fountain PRC Lawyers Scott Guan is Jade & Fountain’s managing partner. Scott has extensive experience in mergers and acquisitions, PE and VC investments, capital markets, foreign direct investment, dispute resolution, as well as general corporate and business advice. Scott has practiced law with leading Chinese, Canadian and British law firms in Shanghai, Toronto and Hong Kong. Scott is continuously recognised in The International Who’s Who of Business Lawyers and other publications as one of the leading lawyers in China. In addition to his practice, Scott is an adjunct professor with the Law School of Fudan University and is retained as an arbitrator by the Shanghai Arbitration Commission. Thomson Reuters Thomson Reuters Legal is a leading provider of information solutions to legal, tax, accounting, intellectual property, compliance and other business professionals, as well as government agencies. Thomson Reuters Legal is the largest publishers of legal textbooks and materials. We also offer a broad range of products and services which includes electronic databases of legal, regulatory and business information and news, and software to assist lawyers and accountants with practice management functions. We have been serving China’s legal professionals since 2002. Westlaw China online legal database is one of our key products. It is a powerful legal research tool customised for legal professionals in China.
Stephen Yao, Chief Executive Oficer, Thomson Reuters Legal China Stephen Yao is the CEO of Thomson Reuters Legal China. He is fully responsible for the development and growth of Thomson Reuters Legal in China, and formulation of the overall strategy of Westlaw China online legal database in the global market. Prior to joining Thomson Reuters Legal in 2008, Yao served as the chief strategy officer of ChinaTimes Group in Beijing, as managing director for Asia-Pacific of Standard & Poor’s Fund Services and as general manager for the Northeast Asia of Dow Jones in Hong Kong. Yao was born in Taiwan and achieved his MBA in the US. Offshore Incorporations Group Offshore Incorporations Group (OIL) is Asia’s leading company formation specialist. OIL has 25 years of experience serving clients throughout Asia including leading professional firms, financial institutions and public listed companies. OIL has a highly experienced team of over 200 professionals, dedicated to providing company formation and a broad range of post incorporation services to our clients, and has recently opened a Shanghai office to provide full support to our clients in the PRC. By leveraging OIL’s expertise in company formation and strong alliances with trusted professional partners, clients receive unparalleled services and support that complement their business needs.
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Feature | interview >>
In-house perspective
GCL-Poly:
Powerful advice Through a series of landmark transactions in recent years, GCL-Poly has become one of the largest players in the world’s solar power industry. ALB finds out how the in-house legal team has transformed itself into a vital, value-adding part of the business
A
s China leads the world in developing and investing in clean-energy technologies to curb carbon emissions, Hong Kong-listed GCL-Poly Energy Holdings has established itself as one of the top green energy operators in the country. It is one of the leading polysilicon and wafer suppliers in the world, and consequently the company’s in-house legal department has expanded and evolved as the company has grown. Starting with one person in 2001, the in-house team now consists of 15 lawyers located across the Shanghai, Suzhou and Hong Kong offices, handling the legal affairs and managing risks for a company that owns 21 subsidiaries and associated power plants, a solar farm and several
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polysilicon and wafer facilities. The legal team was selected as a finalist for the Foreign Company In-House Team of the Year Award at the recent ALB China Law Awards, recognised for being a first-class advisor to its company and the significant progress the team has made over recent years. Susan Wu, the company’s chief legal officer for the power sector, is the founding member of GCL-Poly’s in-house team. Previously with a Shanghai law firm, she joined as the company’s first in-house lawyer in 2001 and helped build the in-house team to its current capacity. Wu sees a correlation between her team’s success and the senior management’s respect for the rule of law. “The CEO and senior management
team’s commitment to integrity and legal compliance forms a foundation for the in-house legal team to excel,” says Wu. “The team’s legal understanding, business acumen and depth and strength of technical expertise, in turn, are the key factors determining success.” Many obstacles and challenges exist on the road to success. Wu believes her team’s main challenge lies in achieving the right balance between safeguarding the company’s legal compliance measures and proactively supporting business growth. “For a dynamic company like GCL-Poly, we are constantly seizing exciting opportunities for growth. Naturally one must be alert [to the fact] every potentially rewarding project comes with commensurate
ISSUE 7.5
Feature | interview >>
risks,” she says. “We work closely with our company’s management, and other functional departments to formulate appropriate business strategy, and assist them in achieving and executing new business goals.” To reach the right balance, Wu believes in-house counsel must strive to be value-adding members of the management team, as opposed to constantly raising obstacles. “Inhouse counsel, with their particular knowledge of the industry in which their company is engaged in, must be more innovative than external counsel. They should be more able to devise viable solutions for potential projects to move ahead and become successful business units,” she says.
Landmark transactions
Since its inception, GCL-Poly’s in-house team has been involved in a diverse range of projects and investments, supporting the company to expand its green energy portfolio across cogeneration, biomass, incineration, wind and solar power sectors. “The in-house team has always had a strong and close working relationship with the investment department, and has developed a wealth of expertise in legal issues relating to all aspects of the company’s business,” says Wu. The past four years, in particular, have seen the team playing an instrumental role in the company’s
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“In-house counsel, with their particular knowledge of the industry in which their company is engaged in, must be more innovative than external counsel. They should be more able to devise viable solutions for potential projects to move ahead and become successful business units" Susan Wu GCL-Poly
milestone developments. These include its IPO on the HKSE in November 2007, and the US$3.4bn acquisition of Jiangsu Zhongneng Polysilicon Technology Development in July 2009. “The 2007 IPO marked a significant milestone in the life of GCL-Poly, and it served as a passage for the in-house legal team to reach a higher level of maturity,” says Wu. “The IPO process has really tested our team’s abilities, but we’ve gained a tremendous amount of first-hand knowledge and experience on a wide array of issues and listing-related matters through working on the deal from the very beginning.” In the 20 months leading up to the IPO launch the in-house team was extremely busy, working closely with the internal IPO execution team and 15 external advisors and intermediate institutions. These included the PRC, Cayman Islands, Hong Kong and international legal counsel, financial advisors and underwriters, all finding solutions for many complicated issues
during the preparation process. The inhouse team played an important role in managing the data room, coordinating due diligence, restructuring, obtaining regulatory approvals, drafting the IPO's legal structure, negotiating listing plans and timetable, preIPO financing, as well as answering questions raised by all concerned parties and regulators and reviewing and finalising the prospectus. “It’s a transformational process. Having been through the challenges and pressures during the IPO process, most of the projects and matters now seem easy to us,” says Wu. “In addition, as the company becomes a public company, it is paying increasing attention to related-party transactions, corporate governance, procedure and compliance, and disclosure issues. As a result, the in-house legal function’s importance within the company has been further elevated.” Last July, GCL-Poly’s US$3.4bn acquisition of Jiangsu Zhongneng opened another exciting chapter for the
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Feature | interview >>
company’s growth. Upon completion, GCL-Poly became China’s largest – and one of the world’s leading –polysilicon producers. It was the in-house team which coordinated a large number of law firms and ensured the successful completion of this highly complex deal involving 30 parties. It was also the largest M&A deal seen in Asia in 2009, and was awarded “M&A Deal of the Year” at the ALB China Law Awards 2010 held recently. Other major transactions that the in-house team assisted the company to complete have included the US$760m investment by China Investment Corporation at the end of 2009 and GCL-Poly’s acquisition of a controlling stake in Konca Solar this year.
Strong team leadership
GCL-Poly’s flotation and strategic shift towards the solar power business means the in-house legal support must be strong and diverse. Thus, immediately after the 2009 acquisition, the company appointed Tong Kay Tak Tom as its vice president and general counsel in Hong Kong. Tong, a practising solicitor in Hong Kong, was director and vice president in charge of legal affairs of Jiangsu Zongneng before he joined GCL-Poly. He brings extensive experience of ►► GCL-Poly – quick facts ►► About the company:
• Founded in 1996, and hired its first in-house counsel in 2001 • Listed on the HKEx in November 2007 • 2009 revenue: RMB4,356m • Number of employees: 4,162 • Number of subsidiary and associated power plants: 21 • Headquartered in Hong Kong with most operations based in mainland China • Became one of the world’s largest polysilicon producers upon its acquisition of Jiangsu Zhongneng in 2009 • Set plans to expand into the global Solar power generation market in November 2009
►► About the in-house team:
• Consists of 15 in-house counsels located across Hong Kong, Shanghai and Suzhou offices • Headed by Tong Kay Tak Tom, vice president and general counsel in Hong Kong, Dai Mengyang, director of legal for solar business in Suzhou, and Wu Sijun, chief legal officer for the power sector in Shanghai • Long-term legal advisors: Hogan & Hartson, Gordon Ng & Co, Conyers Dill & Pearman and Grandall (Beijing)
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international corporate and capital markets practice to the in-house legal department, and is joined by another in-house counsel in Hong Kong. As the solar power unit becomes a dominant part of the company’s business, GCL-Poly recently also named longstanding in-house counsel Dai Mengyang as director of the legal department. Dai, who joined in 2003, will oversee all legal matters for this new but rapidly expanding business unit. Currently he leads eight in-house legal staff working in Suzhou, while Wu and three other members of the in-house department in Shanghai focus on the provision of legal advice and services to the company’s power sector. While continuing to provide excellent support for the power sector, GCL-Poly’s newly expanded in-house legal team can also now provide full support and advice on the company’s new projects and investments in photovoltaic material production and other solar energy projects, both at home and abroad. Wu anticipates continued growth and new challenges in the legal department in the coming years. “Our
►► GCL-Poly deal highlights Date
Deal
Value
Firms involved
11/2007
IPO and listing on HKEx
US$152m
Grandall (Beijing), Coudert Brothers (in association with Orrick, Herrington & Sutcliffe), Conyers Dill & Pearman, Clifford Chance and Commerce & Finance Law Offices
7/2009
Acquisition of US$3.4bn Allen & Overy, Conyers Dill 100% equity & Pearman, Freshfields, interest Grandall (Beijing), Hogan in Jiangsu & Hartson, Milbank Zhongneng Tweed, Paul Hastings and Ropes & Gray
8/2009
Placement of 1.3 billion new shares
US$471m
undisc.
12/2009
CIC investment in GCL-Poly
US$709m
Freshfields, Richard Butler in association with Reed Smith
3/2010
Acquisition of controlling stake in Konca Solar
US$125m
Freshfields, Grandall (Beijing), Jingtian & Gongcheng
In addition, the department calls on a large number of regional and local firms across the country for subsidiaryrelated work. In the past year, the type of work for which GCL-Poly’s in-house team mostly used external counsel was M&A transactions. The team has worked with Jun He’s Shanghai office, Grandall (Beijing), Zhejiang Sunshine, Hong Kong’s Gordon Ng & Co,
“The team's legal understanding, business acumen and depth and strength of technical expertise, in turn, are the key factors determining success" legal function will have to keep pace with the growth of our company and changing regulatory requirements. As the company expands its business globally, we’ll need to gain knowledge of the relevant law and regulations in overseas jurisdictions in which our company operates,” she says.
Leveraging external expertise
Like most other in-house departments, GCL-Poly’s legal department needs to use outside firms for support in certain circumstances, and managing external counsels naturally forms part of the team’s responsibility. Wu says that the department enlists the services of external counsel in three main instances: for transactions in which legal opinions issued by law firms are required, to handle issues and matters that are outside of the in-house team’s expertise, and for complex projects and transactions that require extra resources and manpower.
Susan Wu
GCL-Poly international firms Milbank Tweed, Hogan & Hartson and Freshfields and offshore firm Conyers Dill & Pearman. When choosing which firm to engage as external counsel, “expertise in specific areas” is the top criteria cited by Wu. “For most day-to-day legal matters, external lawyers cannot match the in-house team in terms of understanding of the issues and speed of response,” she explains. “However, we do value external counsels’ extensive expertise and knowledge in many other areas of the law. Their logistics, know-how, precedents and experience in solving similar legal issues are invaluable to us. The in-house counsels are there to identify and leverage these advantages and design innovative structures and solutions. Fee levels are of a lesser concern when we select external counsel. What we value most is expertise, expertise and expertise.” ALB ISSUE 7.5
Feature | interview >>
www.legalbusinessonline.com
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FEATURE | US firms in China >>
M
ore than 50 representatives from over 40 government departments of both China and the US participated in the Sino-US Strategic Economic Dialogue, held in Beijing in May. And as the world prepares for the powerhouse, deals between the two nations continue to roll out. Most recently, a tiny town in Mississippi announced a US$175m investment by China’s Anshan Steel in upstart Steel Development Corp. Thomas Given the ceaseless Shoesmith Pillsbury dealflow between China and the US, lawyers are positive about the impending dialogue; that it will mark the continuation –post-GFC – of the most important bilateral economic relationship in the world. And it is no wonder that China’s law practices are being hailed as one of the few high-growth engines at this time. Firms like O’Melveny & Myers have a bullish outlook. “I think China has come back faster than most markets. In the past few months, different practice areas like capital markets, private equity and FDI have revived quicker than others. We are well into recovery mode,” says Howard Chao, partner-in-charge of O’Melveny & Myers’ Asia practice.
US firms in China
Physical presence is pertinent
David Tang, K&L Gates
The recent US/China Economic Dialogue discussions held between the two countries further cements their powerful business and bilateral relations. ALB examines the new playing field for 21st century deals
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Continued growth of the Chinese economy and increased global business ties have been the impetus for law firms to launch in the region. Most recently, Boston-based Ropes & Gray hired Arthur Mok as a partner to help open its planned Shanghai office, taking him from Hogan & Hartson. Since 2009, several firms – including Winston & Strawn, Latham & Watkins, Steptoe & Johnson, Kirkland & Ellis and Diaz Reus – have set up on the mainland. “Over the past few years, there has been significantly more momentum by US firms wanting to have a physical presence on the mainland. Given the transactional activity flowing through this market, US firms are a lot keener on being here,” says Mok. “It is hard ISSUE 7.5
FEATURE | US firms in China >>
to understand the market and build relationships if you are not physically in the market,” he adds. Besides being able to better identify business issues and understand corporate culture, having proximity to clients and sourcing business locally is also of the utmost importance. K&L Gates is a firm that exemplifies this concept, attributing its increasing mandates to proximity (having offices in Shanghai and Beijing) with clients. “Being on the ground for us is critical for what we do, because we need to be in constant contact with our clients,” says partner David Tang. “Having an actual physical platform on the ground has helped tremendously.” In Morrison & Foerster’s case, proximity has not only boosted the firm’s relationship with existing clients, it also brought in new mandates that it otherwise wouldn’t have attained. “On some of our deals we wouldn’t have gotten the engagement and certainly wouldn’t have been able to support the work the way that we do, without a Beijing office. The work came in because we are here, we are at the front of the line for the client,” says Paul McKenzie, the managing partner of MoFo’s Beijing office. According to McKenzie, the Beijing office plays an important management role by interfacing with clients in their own language and in a cultural manner that they are accustomed to. “Clients are worried about what they do not know, and having someone in the region who can help reassure them is always appreciated,” he explains. Moreover, lawyers say that having an office where their clients are based instils credibility. Henry Liu, managing partner of Nixon Peabody’s China and Asia practice, adds that this is especially important for Chinese clients. “If you don’t have a solid local presence they just don’t find you credible,” he says.
Homebound China desk is more than integration
With increasing on-the-ground competition, leaders in US law firms have been forced to ceaselessly develop new strategies in order to successfully differentiate their capabilities. www.legalbusinessonline.com
Pillsbury has done so by building up not only its Shanghai office but also its China practice desk in the US. The firm has about 20 lawyers focused exclusively on China work and another 20 who focus about half their billable time on the same. But what is unusual about this arrangement is the proportion of practitioners’ working location is divided. “Most of our competitors have chosen to concentrate their team on the mainland but our team is evenly divided in both US and China,” says Thomas Shoesmith, a partner and leader of Pillsbury’s China practice. He sees the idea as a balanced followthrough offering, where clients can get exactly the same service all the way from the mainland to the US – be it on capital markets or M&A interests. “Having that equal capability in both regions, clients can not only have access to all of us on the mainland, they can also access our practice in the US,” he says. “This includes very senior members at their call from both sides. They get a very robust service delivery because each one of us offers the entire range of talent from both US and China.” “To us, it simply means that we are able to respond to our clients who are involved in China business but tend to have operations in both countries. But it is critical and essential as opposed to just being useful” Shoesmith adds.
Fair playground
According to the American Bar Association, there are around 4,891 American lawyers in China (including Hong Kong) today, but under the restrictions imposed by the Chinese government, foreigners are not allowed to be admitted to the PRC bar and practise PRC law. In addition to that, Chinese nationals in US law firms have also been prohibited from practising PRC law. Yet PRC firms have been increasingly adding US capabilities, presenting a new set of challenges to on-the-ground American firms. The intensity of competition is seeing US lawyers cry out for fair ground. “The increasing market strength of the Chinese national law firms is
“Most US firms are moving away from commodity work such as FDI, because the local firms take over that space. They can do that work more efficiently and at a more affordable rate.” David Wang
Paul Hastings
►► US firms in China: office launches 2007- 2010 Firm
Location
Date
Covington & Burling
Beijing
July 2008
Dechert
Beijing
August 2008
Diaz Reus
Beijing
July 2009
Kirkland & Ellis
Shanghai
September 2009
K&L Gates
Shanghai
November 2008
Latham & Watkins
Beijing
January 2010
Loeb & Loeb
Beijing
October 2008
Miller, Canfield, Paddock and Stone
Shanghai
October 2008
Morris Manning & Martin
Beijing
April 2009
Nixon Peabody
Shanghai
March 2008
Ropes & Gray
Shanghai
pending
Steptoe & Johnson
Beijing
March 2010
Weil Gotshal
Beijing
June 2008
Wilson Sonsini Goodrich & Rosati
Shanghai
November 2009
Winston & Strawn
Beijing, Shanghai
November 2009
*This table does not purport to be exhaustive
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FEATURE | US firms in China >>
►► Top 50 US firms based on 2009 revenue Out of 50 top-grossing US firms • 5 firms (10%) do not have any China offices • 15 firms (30%) have two China offices • 11 firms (22%) have one China office • 19 firms (38%) have all three offices: Beijing, Shanghai and Hong Kong
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Rank
Firm
1.
Baker & McKenzie
Lawyers
Equity partners
3,949
720
2009 gross revenue (US$m)
Offices in China
2,112
Shanghai, Beijing and Hong Kong Beijing, Shanghai and Hong Kong
2.
Skadden
1,860
435
2,100
3.
Latham & Watkins
1,880,
444
1,821 Beijing, Shanghai and Hong Kong
4.
Jones Day
2,469
797
1,520
Beijing, Shanghai and Hong Kong
5.
Kirkland & Ellis
1,411
270
1,428
Shanghai and Hong Kong
6.
Sidley Austin
1,588
304
1,357
Beijing, Shanghai and Hong Kong
7.
White & Case
1,890
278
1,307
Beijing, Shanghai and Hong Kong
8.
Weil Gotshal
1,212
292
1,233
Beijing, Shanghai and Hong Kong
9.
Greenberg Traurig
1,707
292
1,173
Shanghai
10.
Mayer Brown
1,657
274
1,118
Beijing, Shanghai and Hong Kong
11.
Morgan Lewis
1,315
263
1,069
Beijing
12.
K&L Gates
1,706
295
1,035 Beijing, Shanghai and Hong Kong
13.
DLA Piper
1,251
213
1,015
Beijing, Shanghai and Hong Kong
14.
Gibson Dunn
983
284
995
-
15.
Sullivan & Cromwell
700
167
995
Beijing and Hong Kong
16.
Cleary Gottlieb
992
192
965 Beijing and Hong Kong
1,427
315
942
Beijing and Hong Kong
993
309
941
Beijing
1,054
180
914 Beijing and Hong Kong
917
193
889 Beijing, Shanghai and Hong Kong
1,005
256
884 Beijing, Shanghai and Hong Kong
17.
Reed Smith
18.
Wilmer Hale
19.
Dewey & LeBoeuf
20.
Paul Hastings
21.
Morrison & Foerster
22.
Simpson Thacher
787
177
871 Beijing and Hong Kong
23.
Hogan & Hartson
1,121
287
865 Beijing, Shanghai and Hong Kong
24.
Bingham McCutchen
922
161
860
Hong Kong
25.
Orrick
1,018
187
848 Beijing, Shanghai and Hong Kong
26.
Davis Polk
684
169
846
27.
McDermott Will
968
255
829 Shanghai
28.
O’Melveny & Myers
861
218
827 Beijing, Shanghai and Hong Kong
29.
Shearman & Sterling
815
185
801
Beijing, Shanghai and Hong Kong
30.
Ropes & Gray
904
252
790
Hong Kong and Shanghai (pending)
31.
Akin Gump
904
252
719
Beijing
32.
Dechert
786
149
713 Beijing and Hong Kong
Beijing and Hong Kong
33.
Winston & Strawn
843
184
705
34.
King & Spalding
796
151
678 -
35.
Debevoise Plimpton
686
144
668 Hong Kong and Shanghai
Beijing, Shanghai and Hong Kong
something we are all looking out for. Chinese firms are increasingly large and are adding more US capability. We now find ourselves competing with PRC law firms for international deals – so that is going to be a challenge,” says Shoesmith. Chao from O’Melveny says that the challenge has presented itself much sooner than he had anticipated. “Chinese law firms are becoming more powerful, more capable and are financially very strong. They are actually starting to go global and it is something that many people didn’t expect to happen as quickly as it did happen,” he says. One main concern is the rules surrounding legal practice. While foreign law firms have been prohibited on practising PRC law by Henry Liu the Chinese government, Nixon Peabody PRC law firms are allowed to practise US law. The circumstances, lawyers say, hardly create a level playing field. And given the speed to which local lawyers are picking up business, US firms are beginning to hope that a fair playground can soon be established. Seeing the challenges that PRC firms have laid out before the US firms, American lawyers are driven to further advance their legal skills and offer new products and services. “You need to continue to be looking for new legal products,” says Shoesmith. He draws an example from structured finance work, an area of law that has not quite been established within the PRC legal system.
“Over the past few years, there has been significantly more momentum of US firms wanting to have a physical presence on the mainland. Given the transactional activity flowing down to this market, US firms are a lot keener on being here.” Arthur Mok
Ropes & Gray ISSUE 7.5
FEATURE | US firms in China >>
“This is relatively unknown locally because China doesn’t yet have the legal structure to permit those products – so when those legal structures appear, we have an edge,” he says. “But it also doesn’t last very long because local firms can learn very fast – so then we have to move on to another [area]. You just have to keep staying on the cutting edge. If you keep sticking to what you are comfortable with, pretty soon the Chinese firms will be passing you by.” The fundamental differences in the operations and business structures between a PRC and Western law firm, at least, plays to the advantage of US firms. “If you peel back the layer of operations of a PRC law firm, it is very different from Western law firms. Under the model used by the majority of the PRC firms, it is hard to access the entire range of a firm’s services, because there are so many more incentives
for the individual partner to hang on to the work than to bring in other expertise from elsewhere in the firm,” says Shoesmith. “That gives foreign law firms an edge.”
Eye on capital markets
The growth of PRC firms has not only brought about intense competition for international transactions, their increasing expertise has also disallowed later entrants to be very much involved in FDI work. “Most US firms are moving away from commodity work such as FDI, because the local firms take over that domain. They can do that work more efficiently and at a more affordable rate,” says Paul Hasting’s Shanghai managing partner, David Wang. Consequently, US firms have since been nudged into doing more high-end work like cross-border listings. In 2009
“On some of our deals, we wouldn’t have gotten the engagement and certainly wouldn’t have been able to support the work the way that we do without a Beijing office. The work came in because we are here.” Paul McKenzie
Morrison & Foerster
►► Intra-Asia capital markets deals (with US firm representations) Deal
Firms involved
Deal value (US$)
Ruinian International Hong Kong IPO
Conyers Dill, Grandall, Jingtian & Gongcheng, Morrison & Foerster, Shearman & Sterling, Lu, Lai & Li
115
Sands China IPO
Davis Polk, MWE Law Firm, Leonel Alves, Freshfields, Advogados & Notarios, Sidley Austin, Walkers
2,500
Mingfa Group IPO
DLA Piper, O’Melveny, Maples and Calder, Commerce & Finance, Grandall and Charltons
BBMG global offering
Haiwen & Partners, Jingtian & Gongcheng, Lovells and Paul Hastings
China Zhongwang IPO
Commerce & Finance, Jingtian & Gongcheng, Conyers Dill, Morrison & Foerster, Richards Butler and Latham & Watkins
284 884 1,300
*This table does not purport to be exhaustive
►► Sino-US Capital markets deals Deal
Firms involved
Deal value (US$)
China Lodging Group IPO
Davis Polk, Simpson Thacher, Conyers Dill, Jun He and Zhong Lun
126
Sino-Forest – Mandra Forestry Finance senior notes exchange
Aird Belis, Appleby, Davis Polk, Jones Day and Linklaters
194
Shanda Games
Davis Polk, Conyers Dill, Commerce & Finance, Simpson Thacher and Jade & Fountain
1,000
Changyou.com IPO and Nasdaq listing
Campbells, Commerce & Finance, Davis Polk, Goulston & Storrs and King & Wood
138
China Natural Gas Nasdaq listing
DLA Piper, Han Kun, Jiarui Law Firm, Loeb & Loeb
Canadian Solar Nasdaq follow-on offering
Latham & Watkins
Wonder-Auto Techonology IPO
O’ Melveny, Tian Yuan, Pillsbury, Holland & Hart and Beijing Ruidu
China Real Estate Information Corporation IPO
Skadden, Fangda, Maples and Calder, Commerce & Finance, O’Melveny & Myers and Shearman & Sterling
50 123 75 248
*This table does not purport to be exhaustive
►► Sino-US M&A Deals Deal
Firms
Deal value (US$m)
Shanghai Jin Jiang Hotels – Interstate Hotels acquisition
Baker & McKenzie, Hogan & Hartson, King & Wood and Paul Weiss
CIC–AES Corporation stake acquisition
Cleary Gottlieb
307 1,580
*This table does not purport to be exhaustive
www.legalbusinessonline.com
43
FEATURE | US firms in China >>
►► Top 50 US firms based on revenue (CONT) Rank
Firm
36.
Foley & Lardner
37.
Paul Weiss
38.
Goodwin Proctor
40.
Fullbright & Jaworski
41. 42.
Lawyers
Equity partners 937
2009 gross revenue (US$)
Locations in China
178
667
Shanghai
653
116
666
Beijing and Hong Kong
835
207
658
Hong Kong
905
332
643
Beijing and Hong Kong
Hunton & Williams
863
245
615
Beijing
Milbank Tweed
534
119
602
Beijing and Hong Kong
43.
Wachtell
231
86
585
-
44.
Covington & Burling
653
209
583
Beijing
45.
Baker Botts
722
92
575
Beijing and Hong Kong
46.
Cravath
477
92
569
-
47.
Vinson & Elkins
693
206
562
Beijing, Shanghai and Hong Kong
48.
Bryan Cave
996
202
555
Shanghai and Hong Kong
49.
Alston & Bird
820
152
551
-
50.
Willlkie Farr
591
134
550
-
“Chinese law firms are becoming more powerful, more capable and are financially very strong. They are actually starting to go global and it is something that many people didn’t expect to happen as quickly as it did” Howard Chao
O’Melveny & Myers
*Gross revenue and headcount numbers extracted from AmLaw 100
there were nine IPOs of Chinese companies on the NASDAQ, including Shanda Games (advised by Davis Polk, Conyers Dill & Pearman, Commerce & Finance, Simpson Thacher and Jade & Fountain), which had one of the largest US IPOs and the largest capital raising for a Chinese company seen in 2009. Changyou.com (advised by Campbells, Commerce & Finance, Davis Polk, Goulston & Storrs and King & Wood) had one of the best-performing US stocks in 2009; China Real Estate Information (advised by Skadden, Fangda, Maples and Arthur Mok Calder, Commerce & Ropes & Gray Finance, O’Melveny & Myers and Shearman & Sterling) introduced the first spin-off of a Chinese company listed on the NYSE. While the US capital markets bring about some hopeful returns for US law firms, lawyers admit that a lot of that interest has now changed. US firms are having to deal with the fact that Chinese clients are not tapping into the US capital markets as much as they used to – and the response to that has been, in part, for many US firms to acquire a Hong Kong law capacity. O’Melveny & Myers recently 44
appointed Gordon Ng, the former managing partner of Hogan & Hartson’s Hong Kong office, as a partner in its corporate finance/capital markets practice in Hong Kong. Ng has more than 17 years experience in guiding clients through corporate and financing transactions, both in Hong Kong and China. This synergy between Ng’s Hong Kong law capabilities and practice, and the firm’s existing relationships with leading banks and private equity firms, is likely to create new business opportunities for its China practice. “Chinese companies’ listing interest has changed a lot over the years – it has been much less US-centric and become more Hong Kong- and Shanghai-centric,” Ng says. “It has also become less SOE-dominant and more private companies and PE funded company-dominant.” As evidence of this, competitor firm Paul Hastings reports that the firm is currently working on no less than 15 Hong Kong IPOs for Chinese clients. Tang explains that the receptivity in Asian capital markets is due to having a positive attitude that has been lacking in the western regions. “Investor appetite in Asia is very high. Companies want to list now because they see it may
be possible to obtain high valuations for their listings. It is really a question of speed and pressure to go on the market as soon as possible, in order to catch the current investment climate,” he says. According to Tang, K&L Gates is in the midst of a big push with capital markets; it has been “all hands on deck” to make sure the firm can meet the increasing listing interest. Moving beyond Asian capital markets, the general business outlook within the region is promising. There is a high level of confidence in being able to do business and to go across markets to Gordon Ng O’Melveny & look for opportunities. Myers This attitude, which has been prevalent for the past 12 months or so, is a source of motivation for US firms to seek out new roles. “In the UK and US, the attitude is very different – after coming out of a very harrowing period, they are very conservative. That’s a big differential trend where Asia has the confidence which does not exist in former market leaders,” says Tang. “A lot of investors are flocking to China because that positive attitude is all there.” ALB ISSUE 7.5
•
Firm Profile
K&L Gates K&L Gates Contacts:
David K.Y. Tang Managing Partner, Asia Tel +86.10.8518.8528 david.tang@klgates.com
K
&L Gates LLP comprises nearly 2,000 lawyers practicing in 36 offices across three continents. The firm has one of the largest international practices in Asia, offering clients seamless service through more than 80 legal professionals in six offices located in Beijing, Hong Kong, Shanghai, Singapore, Taipei and Tokyo.
K&L Gates China Practice K&L Gates has a team of PRC lawyers who understand the domestic legal system and provide clients with direct access to the latest developments and the requirement of global standards. The lawyers regularly advise clients on investments in the PRC and assist in resolving issues regarding joint ventures, regulatory approvals, tax, employment, foreign ownership restrictions, foreign exchange controls, protection of intellectual property, contentious disputes, and repatriation of capital and profits. The lawyers also assist clients on capital markets transactions including IPOs, listings on stock exchanges and PIPEs in Hong Kong, the United States, and the United Kingdom. Working closely with private equity funds and investment managers, as well as state owned enterprises, K&L Gates lawyers have rich experience in mergers and acquisitions and other financing transactions.
Key Facts and Attributes: • Made its mark in Asia with many “firsts,” including assisting the first non-bank to obtain Qualified Foreign Institutional Investor status in China and the first Chinese company to list on the Tokyo Stock Exchange. • Listed as one of three American Lawyer Global 50 firms with the same six-office footprint in Asia. • Named in 2009 among the Asia Legal Business ”Fast 30” as one of the fastestgrowing law firms in Asia. • Recently short-listed by The Lawyer as an “International Law Firm of the Year.” • Fully integrated into the K&L Gates network of lawyers across 30 other offices in Europe, the United States, and the Middle East.
www.legalbusinessonline.com
David is the Managing Partner, Asia for the firm and focuses his law practice in the areas of foreign investment, cross-border financings, joint ventures, mergers and acquisitions, and real property related transactions. He has 30 years of transactional experience in the Greater China market. David is a member of the American Law Institute and included in Best Lawyers and International Who’s Who of Business Lawyers. He served on the Board of the Federal Reserve Bank of San Francisco from 2002 – 2008 and as its Chair from 2006 – 2008. Clifford Ng Administrative Partner, Beijing, Shanghai, Singapore, Hong Kong Tel +852.2230.3558 clifford.ng@klgates.com
Clifford is the Administrative Partner for the K&L Gates Beijing, Shanghai, Singapore and Hong Kong offices. He provides strategic advice to many companies and their major shareholders. His mandates often involve investments in China, Hong Kong and Southeast Asia for North American and European clients, and for Asian clients in their investments in North America and Europe. Clifford’s clients are active in a broad spectrum of sectors from agriculture to media to technology. Navin K. Aggarwal Partner, Hong Kong Tel +852.2230.3515 navin.aggarwal@klgates.com
Navin is a partner in K&L Gates Hong Kong office. He leads our corporate finance team in Hong Kong and his practice includes mergers and acquisitions, regulatory compliance, public offerings, private placement of securities and rights issues, joint ventures and securities related legislation. Navin has practiced law since 1988. Yujing Shu Partner, Beijing Tel +86.10.8518.8528 yujing.shu@klgates.com
Yujing is experienced in China cross-border corporate, foreign investment, regulatory, real estate, and finance practice and has worked with clients in the life sciences, pharmaceuticals, finance, IT, education, aerospace, and manufacturing. Prior to receiving her juris doctor in the United States,
Yujing practiced general commercial law in the PRC, where she received her license in 1988. Ivan Y.F. Chiang Partner, Shanghai Tel +86.21.2211.2088 ivan.chiang@klgates.com
Ivan is a partner in the K&L Gates Shanghai office. He has over 15 years of legal experience, advising clients on various mergers and acquisitions, capital market transactions, private equity financings, direct investments, construction and property related transactions and general corporate matters in the Greater China region. James J.Y. Chen Administrative Partner, Taipei Tel +886.2.2326.5155 james.chen@klgates.com
James is the Administrative Partner of the K&L Gates Taipei office. James represents issuers and borrowers in a variety of corporate finance transactions. His experience includes public offerings and private placements of equity, debt, convertible and other securities, export credit facilities, bank loans, securitization of accounts receivable, cross-border mergers and acquisitions, trade financing and derivative transactions. L. Howard Chen Partner, San Francisco Tel 415.882.8029 howard.chen@klgates.com
Howard is a partner in the Shanghai and San Francisco offices. He has gained a reputation as a practical attorney who understands the culture and business objectives of technology companies. Howard has developed a practice focusing on intellectual property issues, representing Asian technology leaders and servicing their legal needs. He represents blue-chip technology clients as well as small, aggressive technology startups. K&L Gates Greater China Offices: Beijing Suite 711-712, Tower W1, Oriental Plaza No.1 East Chang An Avenue Dongcheng District, Beijing, 100738 Tel +86.10.8518.8528 | Fax +86.10.8518.9299 Hong Kong 44th Floor, Edinburgh Tower, The Landmark 15 Queen’s Road Central, Hong Kong Tel +852.2230.3500 | Fax +852.2511.9515 Shanghai Suite 3705, Park Place, 1601 Nanjing Road West Jing An District, Shanghai, 200040 Tel +86.21.2211.2000 | Fax +86.21.3251.8918 Taipei 30/F, 95 Tun Hwa S. Road, Sec. 2 Taipei, 106 Tel +886.2.2326.5188 | Fax +886.2.2325.5838
45
ALB special report | Chengdu 2010 >>
Chengdu 2010: Land of abundance On track to become the financial and commercial centre of SouthWest China, Chengdu’s legal industry is undergoing significant changes. Most are driven by growing demand in the middle and upper market segments. ALB reports
T
he second anniversary of the Wenchuan earthquake that devastated Sichuan province was 12 May 2010. This year, those affected have been given a breath of new hope, as the majority of the planned RMB1trn reconstruction projects have been completed. The economy and infrastructure of the province is not only restored but has emerged from the disaster even better than before. Law firms in Chengdu, the capital city of Sichuan, have dedicated a considerable amount of time and effort towards aiding victims and supporting relief and rebuilding efforts in the past two years. With the reconstruction
46
work setting off a new upsurge in investments and transactions into the region, Chengdu’s law firms have now gained new growth momentum and become more involved in all aspects of the region’s economic development. Tahota, Chengdu’s largest law firm by headcount and the winner of ALB’s West China Law Firm of the Year in 2010 and 2008, has reported 66% growth in revenue for the first quarter of this year, over the same period last year. And Cheng Shoutai, the founder and managing partner, is bullish on the prospects for the rest of this year and beyond. “Just by looking at the soaring number of foreign banks and financial
►► Quick facts about Chengdu • • • •
Over 4,000 lawyers (8,000 in Sichuan) Approximately 300 law firms (770 in Sichuan) 2009 GDP reached RMB450bn, up 14.7% More than 130 of the world’s 500 largest companies have subsidiaries, assembly and manufacturing bases or R&D centres in Chengdu; among them are Intel, Sony, Toyota, Microsoft, foxconn, Citibank, Lafarge, CocaCola, GE, HSBC, and Hutchison Whampoa • In the first quarter of 2010, the total amount of foreign direct investment in Chengdu reached US$1bn, an increase of 97% over the same period of last year • In 2009 income from software and information services totalled RMB75.6bn, up 47% year-onyear • In 2009 26,130 patent applications were filed by Chengdu companies, and 16,349 cases were authorised, the highest mandate for any city in West and Central China
institutions that have established branches in Chengdu and the topgrade office buildings newly added to downtown, anyone can get a good sense of how strongly and quickly the city has recovered from the tragedy and ISSUE 7.5
ALB special report | Chengdu 2010 >>
transformed to triumph,” said Cheng. In the course of this transformation, law firms are facing new opportunities and are standing at the threshold of a new phase of market dynamism. Tahota, for example, has been retained to provide local legal services and advice on the newly initiated Chengdu International Commerce Centre project, which is jointly developed by three major Hong Kong property developers – Sun Hung Kai Properties, Henderson Land Development and Wharf Holdings This will create an epoch-making new landmark on Chengdu’s skyline. In addition, Tahota has recently opened its Chongqing branch as a strategic move to reinforce its market leadership in West China. “The synergy and interactions between the development of Chengdu and the other Cheng Shoutai Tahota major regional centre, Chongqing, will generate incredible growth opportunities for firms that can straddle the two cities,” Cheng says.
Changing landscape
The marketplace has seen many changes in recent years, including an increasing number of new entrants in the local market, partner defections and the rise to prominence of several key firms. The changing demands of an expanding portfolio of clients – from domestic SMEs to global MNCs – has driven Chengdu firms to actively acquire and improve their skillsets and capabilities. Ambitious lawyers are, at the same time, motivated to switch
►► Noticable local advisors Firm
Managing partner
Tahota 泰和泰
Cheng Shoutai 程守太
Sichuan Jun He 四川君合* Sifangda 四方达 Showme 守民 Dingli 鼎立 Yingji 英济 Huitao 汇韬 Yuanxu 元绪 Yun Kui 运逵 Kangwei 康维
Qin Zejun 秦泽均 Li Shiliang 李世亮 Liu Shoumin 刘守民 Shi Jie 施杰 Wang Nengchun 王能春 Li Qijun 李启军 Xie Jiazuo 谢佳佐 Yang Yunkui 阳运逵 Gu Peidong 顾培东
www.legalbusinessonline.com
60 52 49 48 44 31 28 26 18
Office(s) Chengdu, Beijing, Shenzhen, Dalian, Chongqing, Hong Kong Chengdu Chengdu Chengdu Chengdu Chengdu, Chongqing Chengdu Chengdu, Beijing Chengdu Chengdu
Note: Numbers of lawyers were obtained from the website of Chengdu Bar Association and each law firm on 12 May 2010.*Sichuan Jun He is not affiliated with Beijing Jun He.
led by Dingli’s former director Jiang Min and partners Zhang Jiarong and Gary Xiao, left the firm to set up Gu Yu, which focuses primarily on general corporate, foreign legal affairs, real estate and construction and government projects. “We were approached by a few national firms to join them, but we’ve decided to build up a new brand from scratch ourselves. We believe the legal market in Sichuan has a lot to offer, particularly in the middle and upper market segments,” says Gary Xiao, the deputy head of foreign legal affairs division of Gu Yu. “So we strive to be strong local advisors, who are better positioned to service and benefit from the province’s economic growth.” Xiao expects his firm to recruit ten more lawyers in the next few years, pushing the total number of legal practitioners towards 30. It’s common practice for large Beijing firms to snare partners – even an entire team – from leading local firms to establish and expand their branch
“Anyone can get a good sense of how strongly and quickly the city has recovered from the tragedy and transformed to triumph” platforms to seek an increased chance of working on more lucrative and complex transactions. Dingli, one of the larger local firms, has lost a number of corporate partners in the past year, some going to Beijing firms such as Dacheng and Ying Ke. In 2009 a team of lawyers
Total number of lawyers 139
Cheng Shoutai
Tahota
offices. In 2007, Dacheng poached senior partners to lead its Chengdu team, from local firms Yinzheng, Huitao and Hesheng. In the same year, Zhonglun W&D hired a partner from leading full-service local firm Yingji for its Chengdu opening. Grandall Legal Group, however,
penetrated the Sichuan market in a different way. In 2007 it established a strategic alliance with leading local firm Sifangda, which has been administered and operated as an office of Grandall since. The relationship has been beneficial for both firms – they are contemplating a full integration in the near future, upon receiving approval from the regulators. Zhang Ruji, the managing partner of King & Wood’s offices in both Chengdu and Chongqing, relocated to the Chengdu office in 2001 and assisted with the setup of the firm’s Chongqing office in 2006. “As the scale and sophistication of Sichuan enterprises’ projects continues to grow, these clients increasingly prefer to hire bigger and more established national firms as their external counsel. By joining national firms, Zhang Ruji local lawyers generally King & Wood can have a more prestigious platform to develop large corporate clients, boost their exposure in handling larger projects and [have] access to a wider range of resources,” he says Staff movements, however, are in both directions – reflecting the dynamics of the market. While many lawyers have left local practices to join national firms, some have departed national firms to take up more senior roles in local partnerships. For example, several senior associates and partners at King & Wood left to join local firms as partners and even practice heads. “A steady level of personnel movements between leading 47
ALB special report | Chengdu 2010 >>
national firms and local firms is critical for transferring knowledge, spreading good practices and lifting the bar in the local industry,” says Zhang. In 2006, Liu Bin, a former partner with King & Wood, was appointed to the partnership of Tahota, boosting the capability and expertise of Tahota’s capital markets and securities team. As lead partner, in 2009 he acted as the issuer’s advisor in the IPO and listing of Chengdu Guibao Science Technology, on Shenzhen’s newly-launched ChiNext board. The company was among the first batch of 28 companies to be listed on this board. In the same year, Liu also advised Sichuan Changhong on successfully issuing RMB3bn of convertible corporate bonds on the Shanghai Stock Exchange. In doing so, Tahota becomes one of the few local firms that have a track record of completing both an IPO and debt market deals.
Regional financial centre
“A steady level of personnel movements between leading national firms and local firms is critical for transferring knowledge, spreading good practices and lifting the bar in the local industry” Zhang Ruji
King & Wood
Last September, JPMorgan Chase Bank (China) opened its fifth China branch in Chengdu – a key development for the city’s plan to become a financial centre for the South-west region. “Chengdu is an important economic, financial and cultural centre in South-West China. The city is uniquely positioned to serve the development of enterprises in the region and we are delighted to make Chengdu our home,” said Heidi Miller, chief executive officer of JPMorgan Treasury & Securities Services, at the Chengdu opening ceremony. Major international financial institutions – including Citigroup, HSBC, Standard Chartered Bank, ABN AMRO, BNP Paribas, Bank of Tokyo-Mitsubishi UFJ – all have established their branches in the city. The number of Chinese and foreigninvested banking institutions stationed ►► Beijing firms in Chengdu Firm
King & Wood 金杜 Guantao 观韬 Dacheng 大成 Zhong Yin 中银 Zhonglun W&D 中伦文德 Huatai 华泰 Huicheng 惠诚 Yingke 盈科
Managing partner of Chengdu office Zhang Ruji 张如积 Qiu Guangli 仇光莉 Leng Yunsong 冷云松 Li Xinwei 李新卫 Wang Zhijian 王志坚 Chang Xiaoyi 常孝义 Hao Xueyu 郝学余 Zeng Wenzhong 曾文忠
in Chengdu has reached 45 so far. Domestic banks also have developed vigorously; the People’s Bank of China has set up its South-West China headquarters in Chengdu, and almost all domestic banks and securities brokerage firms have located their regional headquarters or branches here. The prosperous financial sector in Chengdu has led to strong demands for banking and finance-related legal services and products. Many local firms claim that banking and finance is a main focus area for them and has been one of the fastest-growing practices. Sifangda has enjoyed an average growth rate of 20% in annual revenues over the past few years, and has seen over 70% of its income coming from non-contentious corporate and advisory work since 2008. A large number of these mandates come from banks and financial institutions. “The flourishing of [the] local economy is luring more banks and financial institutions to the city to capitalise on the economic growth. The local government’s efforts in promoting Chengdu as a regional financial hub are also influential,” says Li Shiliang, founder and managing partner of Sifangda. “I’m confident that more investments will be channelled into the financial sector, and, therefore, the relevant practice areas at local firms will be even more buoyant.” Sichuan Yuanxu, led by managing partner Xie Jiazuo, is known locally for its expertise in finance, capital markets and insurance practices. The firm has serviced an array of banking, insurance and investment firms. “Given the continuing development and maturation of Chengdu’s financial industry, I foresee the potential for our current practice to double in size and revenue in the coming years,” Xie says.
Number of lawyers in Chengdu 23 12 14 14 13 7 3 n/a
Year established 1998 2001 2001 2003 2007 2007 2009 2010
Note: Numbers of lawyers were obtained from the website of Chengdu Bar Association and each law firm on 12 May 2010
48
ISSUE 7.5
ALB special report | Chengdu 2010 >>
As a growing number of the firm’s Sichuan clients are expanding their business into Beijing, many Beijing companies are looking to invest into Sichuan, Xie has masterminded the establishment of its Beijing branch, which opened in March. “The Beijing office will serve as a gateway for us to expand our corporate and advisory practices and a window for us to keep updated with the latest legislative and regulatory changes as well as business intelligence,” he says. With a well-established and accessible banking and finance mechanism, Chengdu naturally becomes a nurturing ground for hightech and IT start-up companies. The city has already cultivated a large pool of fast-growing quality enterprises, which are planning to go public and to fund their next phase of growth. In the past three years, about 20 Sichuan-based companies have launched IPOs and listed on stock exchanges at home and abroad. King & Wood advised on 10 of the 20 IPOs,
►► chengdu: Headline transactions 2009-2010 Deal
Value (US$m)
United Eagle Airlines restructuring Diageo–Chengdu Yingsheng Investment acquisition Sichuan Kelun Pharmaceutical IPO Changhong convertible bonds issuance Sichuan Shuangma Cement–Lafarge Dujiangyan Cement stake acquisition Yanlord’s acquisition of residential site in Panchenggang Sichuan Expressway IPO Sichuan Hanlong Group investment in Australia’s Moly Mines Guibao Science Technology IPO on ChiNext Sichuan Tengzhong–Hummer acquisition
demonstrating its clear dominance in this market segment. The firm has already received mandates for more than 30 IPOs by Sichuan companies. “Judging by the number of companies that are planning a public float and the considerable number of companies that are eligible for an IPO, Chengdu definitely has the strongest economy in West and Central China,” says Zhang.
Firms involved
1,000 925
Tahota, Jun He Haiwen & Partners, Freshfields, Slaughter & May 735 King & Wood 440 Tahota 330 Undis. 280
Undis.
260 200
Zhong Yin Corrs Chambers Westgarth, Freehills, Blake, Cassels & Graydon 44 Tahota Undis. Jun He, Shearman & Sterling
He anticipates larger firms, including Zhong Lun and AllBright, will establish themselves in this nascent market. “The wealth gap between the eastern regions and the western regions is narrowing and will continue to narrow. This impetus will translate into an exponential growth in demand for legal services, in all disciplines and at all levels,” he says. ALB
揭开公司面纱规定的不足
我
国《公司法》第20条第3款规定， 揭开公司面纱制度主要是制止股东 逃避债务，损害债权人利益。这一 规定不足之处在于：
一、遗漏社会公共利益保护
法学界一般认为，揭开公司面纱制度保护的对 象，是公司债权人；以司法手段制止股东滥用 权利，保护了个别债权人，也就是从整体上保 护了社会公共利益。 但是，控制股东为了自己不法利益，既可 能利用公司法人格损害债权人，也可能利用 公司法人格直接损害社会公共利益，包括政 治、外交、军事利益、或者司法主权等社会公 共利益。在这些情形下，也应揭开公司面纱。 例如：股东利用公司法人格、实施犯罪， 法院在刑事诉讼中也应当揭开公司面纱。又 如，欧共体条约第85条第1款规定，禁止直 接或间接设定买卖价格或者其他交易条件， 以对欧共体共同市场的自由竞争产生阻碍、 限制或扭曲。在Imperial Chemical Industries Ltd. v. Commisssion EC一案中，欧共体委员 会调查发现，三种价格稳定的染料在一定时期 内同时涨价，原因在于母公司通过电传给所有 子公司下达了指令。欧共体委员会和法院都认 www.legalbusinessonline.com
定，母公司已经控制了子公司的产品销售和价 格制定等具体业务决策，应为众多子公司的不 正当竞争行为承担责任。我国反垄断法也有类 似规定。当然，在我国反垄断机构揭开公司面 纱、给予行政处罚的同时，并不排斥受垄断之 害的债权人提起民事诉讼，请求揭开面纱，判 决跨国公司母公司承担赔偿责任。 最后，从程序法上看，揭开公司面纱制度 还是国家在遵守国际法原则、不损害其他国 家司法主权的条件下、扩大对域外跨国公司 管辖权的有力武器。
二、附加条件背离制度价值取向
《公司法》第20条第3款规定揭开面纱的前 提在于有“逃避债务”的行为及对债权人的损 害要“严重”。 但笔者认为这一要件应当仅适用于合同之 诉，不应用以概括揭开面纱的特征。在揭开 面纱、震惊世界的大案往往都是侵权之诉。 此外，如果要将“逃避债务”之“逃避”理解为股 东承担责任的主观故意，对于债权人而言就 更是不能承受之重了。此外，何谓“大量”或“严 重”，对不同的公司来说无从比较，对于债权 人同样如此。只要侵害了债权人的合法权益， 就应当赋予其揭开面纱的请求权和胜诉权。
Firm Profile
Tahota
三、忽视跨国公司的特别义务与责任
当前，跨国公司在华存在着行业垄断、环境 污染、安全健康、商业贿赂、非法撤离等问 题，特别是跨国公司母公司将在发达国家或 其母国已被淘汰的技术、设备、危险废物等 通过绿地投资方式转移到发展中国家，已经 在不少发展中国家引起了严重的社会、政治 和经济问题和群体性诉讼。跨国公司母公司 应当承担特别的注意义务以防止为子公司不 当行为，在英美等发达国家早有成案，已成 社会共识。但是，我国《公司法》将“逃避 债务”作为要件，令人沮丧。依此规定，母公 司为了获取高额利润，明知子公司从事危险 作业，有权制止而不制止，造成重大事故以 后，则可以以自己完全没有干涉子公司的自 主经营权，更没有“逃避债务”为由，不承担 对债权人的赔偿责任。 唐前宏, 律师 泰和泰律师事务所 成都市鼓楼南街117号世贸中 心A 25楼、27楼 邮编：610015 总机：86625656 手机：0086 13981912313 邮箱：tangpossible@gmail.com
49
MARKETData DATE| M&A | M&A Market >>>>
In association with
M&A TRANSACTIONS AND STATISTICAL ANALYSIS Top 10 Announced Deals - Greater China (17 April, 2010 - 14 May, 2010) Announcement Date
Target Company
Target/Seller Legal Advisor
Bidder Company
Bidder Legal Advisor
Seller Company
6-May-10
Hua Xia Bank Co Ltd (27.15% stake)
Concord & Partners Law Offices
Deutsche Bank SA; Shougang Group Corp; and State Grid Corporation
Freshfields
3,042
26-Apr-10
WuXi PharmaTech
Cravath Swaine & Moore; O'Melveny & Myers; Willkie Farr & Gallagher
Charles River Laboratories Inc
Davis Polk & Wardwell; Advising financial advisor (JPMorgan): Simpson Thacher & Bartlett
1,488
27-Apr-10
Wheelock Properties Ltd
30-Apr-10
Block 15/34 (24.5% stake)
29-Apr-10
Sigma Enterprises Ltd (13.71% stake)
COSCO Pacific Ltd
18-Apr-10
Sul Americana de Metais S.A
28-Apr-10
Shandong Century Electric Power Development Co Ltd (84.31% stake)
28-Apr-10
Seabank Power Ltd (50% stake)
7-May-10
Arc of Triumph Development Co Ltd (40% stake)
26-Apr-10
SCA (Asian packaging business)
Deal Value (USDm)
Wheelock & Co Ltd Advising seller: Blake, Cassels & Graydon; Hogan & Hartson; Mannheimer Swartling
889 Devon Energy Corporation
515
AP Moeller - Maersk A/S
429
Honbridge Holdings Ltd
Votorantim Novos Negocios Ltda
390
Huadian Power International Corporation Ltd
Zhengda Energy Development (China) Co Ltd
346
BG Group Plc
322
International Entertainment Corporation
235
Svenska Cellulosa Aktiebolaget SCA
200
China National Offshore Oil Corporation Ltd
Advising seller: Linklaters
Advising financial advisor (JPMorgan): Clifford Chance
Cheung Kong Infrastructure Holdings Ltd
Simmons & Simmons
Power Link Fortune Ltd
Advising seller: Clifford Chance
International Paper Co
Allen & Overy
Notes: Based on announced deals, including lapsed and withdrawn bids, from 17 April 2010 to 14 May 2010•Based on geography of either target, bidder or seller company being China, Hong Kong, Macau or Taiwan•Includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from table include property transactions and restructurings where the ultimate shareholders' interests are not changed•League tables are ranked by volume•Q2 10 * = 1 April 2010 to 14 May 2010
League Table of Legal Advisors to Greater China M&A (Jan 01, 2010 - May 14, 2010) Rank
House
League Table of Financial Advisors to Greater China M&A (Jan 01, 2010 - May 14, 2010)
Value (USDm)
Deal Count
Rank
House
Value (USDm)
Deal Count
1
Jones Day
2,490
13
1
Deutsche Bank
42,435
9
2
Freshfields Bruckhaus Deringer
4,538
11
2
Morgan Stanley
31,681
8
3
Allen & Overy
2,702
6
3
Credit Suisse
42,145
6
4
King & Wood
1,198
6
4
Citigroup
37,492
6
5
Grandall Legal Group
486
6
5
China International Capital
8,164
6
6
Clifford Chance
1,235
5
6
JP Morgan
7,338
6
7
DLA Piper
79
5
7
Goldman Sachs
8
Slaughter and May
38,683
4
8
Optima Capital
9
Simpson Thacher & Bartlett
37,232
4
9
10
Linklaters
7,740
4
10
Based on geography of either target, bidder or seller company being China, Hong Kong, Macau or Taiwan
44,560
5
523
5
Somerley
2,881
4
KPMG
1,864
4
Based on geography of either target, bidder or seller company being China, Hong Kong, Macau or Taiwan
Greater China M&A Activity - Quarterly Trends 350
70,000
300
50,000
250
40,000
200
30,000
150
20,000
100
10,000
50
0
50
Value (USDm) Volume
Q1 03
Q2 03
Q3 03
Q4 03
Q1 04
Q2 04
Q3 04
Q4 04
Q1 05
Q2 05
Q3 05
Q4 05
Q1 06
Q2 06
Q3 06
Q4 06
Q1 07
Q2 07
Q3 07
Q4 07
Q1 08
Q2 08
Q3 08
Q4 08
Q1 09
Q2 09
Q3 09
Q4 09
Q1 10
Q2 10*
Number of deals
Value (USDm)
60,000
0
Greater China Legal Business ISSUE 7.6 ISSUE 7.5
Market Data | capital markets >>
Equity Capital Markets TRANSACTIONS List China, Hong Kong 25 Apr – 22 May Issuer
Proceeds (USDm)
Issue Date
Currency
Bookrunner(s)
Sector
1,246.1 732.5 498.0 336.2 329.5 325.3 293.5 275.0 225.5 222.5 219.7 216.8 215.9 212.4 210.0 196.3 183.2 165.2 155.8 142.1 131.8 127.3 123.1 114.8 110.7 105.4 104.1 99.7 97.5 96.6 87.9 85.6 82.7 82.4 77.4 74.2 71.2 68.8 66.5 64.2 61.5 60.0 53.8
05/13/10 05/20/10 05/13/10 05/04/10 05/13/10 05/12/10 05/17/10 04/29/10 04/28/10 05/04/10 05/11/10 05/20/10 04/26/10 05/07/10 04/29/10 05/12/10 04/29/10 04/26/10 04/29/10 05/14/10 05/04/10 05/17/10 05/07/10 05/14/10 05/11/10 05/17/10 05/20/10 05/07/10 05/13/10 05/04/10 05/17/10 04/26/10 05/20/10 05/07/10 05/04/10 05/04/10 04/30/10 05/11/10 05/06/10 05/13/10 05/11/10 05/20/10 05/11/10
HKD CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY HKD CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY CNY HKD CNY CNY USD HKD CNY CNY USD CNY CNY CNY
Goldman Sachs & Co Sinolink Securities Co Ltd China Merchant Securities Co China Securities Co Ltd Pingan Securities Co Ltd UBS Securities Inc; Credit Suisse Founder Sec Ltd China Merchant Securities Co Huatai United Securities Co Hongyuan Securities Co Ltd Hualin Securities Co Ltd Haitong Securities Hongyuan Securities Co Ltd Everbright Securities Co Huatai Securities China Securities Co Ltd Goldman Sachs & Co; HSBC Investment Bank Asia Ltd Central China Securities Hongyuan Securities Co Ltd Pingan Securities Co Ltd Haitong Securities Pingan Securities Co Ltd Sinolink Securities Co Ltd Huatai Securities Dongguan Securities Co Ltd Pingan Securities Co Ltd Sinolink Securities Co Ltd Haitong Securities Hongyuan Securities Co Ltd Jiangnan Securities Co Ltd Pingan Securities Co Ltd Pacific Securities Guosen Securities Co Ltd HSBC Investment Bank Asia Ltd GF Securities Everbright Securities Co Credit Suisse Piper Jaffray Inc Guoyuan Securities Co Ltd Minsheng Securities Credit Suisse First Capital Securities China Jianyin Investment Ltd Southwest Securities Inc
Financials Healthcare High Technology Materials Consumer Products and Services Industrials Retail Materials Materials Materials Healthcare Healthcare Consumer Staples Consumer Products and Services Industrials Industrials Industrials Consumer Staples Materials Energy and Power Consumer Products and Services Telecommunications Materials Materials Materials Industrials Materials Healthcare Industrials Telecommunications Telecommunications High Technology Consumer Staples Materials Energy and Power Media and Entertainment Healthcare Consumer Staples Industrials High Technology Consumer Products and Services High Technology High Technology
601.3 128.5 128.5 109.5 60.1 53.6 52.7 38.4 36.8
04/29/10 05/18/10 04/27/10 04/29/10 05/20/10 04/29/10 05/14/10 05/04/10 04/28/10
HKD HKD HKD HKD HKD HKD HKD HKD HKD
JP Morgan Securities Asia Pte; Goldman Sachs & Co Taifook Securities Group Ltd Bank of America Merrill Lynch Morgan Stanley Sun Hung Kai Investment Svcs; Get Nice Capital Ltd Oriental Patron Securities Ltd; Cantor Fitzgerald Inc Kingston Securities Limited Kingston Securities Limited Kingston Securities Limited
Industrials Retail Consumer Products and Services Healthcare Retail Consumer Staples Media and Entertainment Financials Financials
China Ping An Ins(Grp)Co of China Sichuan Kelun Pharm Co Ltd Hangzhou Hikvision Digital Liao Ning Oxiranchem Inc Shenzhen Aisidi Co Ltd Shanghai Electric Group Co Ltd Rainbow Department Store Co Zibo Qixiang Tengda Chem Co Xinjiang Tianshan Cement Co Henan Xindaxin Materials Co Hainan Honz Pharm Co Ltd Guizhou Bailing Grp Pharm Zhejiang Jiaxin Silk Corp Ltd Glodon Software Co Ltd China NavInfo Co Ltd NVC Lighting Tech Co Ltd Xuchang Yuandong Drive Shaft Zhejiang Aishida Electric Co Do-Fluoride Chemicals Co Ltd Wolong Electric Group Co Ltd Janus(Dongguan) Precision Guangzhou Echom Science&Tech Jiangsu Yoke Technology Co Ltd China Kinwa High Tech Co Ltd Wuhu Token Science Co Ltd Zhejiang Kangsheng Co Ltd Zhongyuan Special Steel Co Ltd Hunan Hansen Pharmaceutical Jiangsu Changfa Refrigeration Hebei Hengxin Mobile Bus Co Fujian Sunnada Commun Co Ltd Shenzhen H&T Intelligent Youyuan International Hldg Ltd Jiangsu Jiujiujiu Technology Lanzhou Haimo Technologies Co Charm Communications Inc Lansen Pharmaceutical Hldgs Co Winall Hi-tech Seed Co Ltd Guizhou Changzheng Elec Co Ltd JinkoSolar Holding Co Ltd Shenzhen Infotech Tech Co Ltd Shenzhen Das Intellitech Co Guoguang Electric Co Ltd
HONG KONG COSCO Pacific Ltd Doxen Energy Group Ltd Chow Sang Sang Holdings Intl TUL United Power Investment Ltd China Precious Metal Resources Neo Telemedia Ltd OP Financial Investments Ltd Interchina Holdings Co Ltd
DEBT CAPITAL MARKETS TRANSACTIONS LIST China, Hong Kong 25 Apr – 22 May Issuer
Proceeds (USDm)
Issue Date
2,930.6 2,929.6 2,929.6 1,465.3 732.2 586.0 410.0 366.3 322.3 297.2 219.8 219.7 190.4 175.8 146.5 146.5 146.5 146.5 131.8 117.9 117.2 117.2 102.5 87.9 50.0
04/28/10 05/19/10 05/19/10 04/28/10 05/11/10 05/04/10 05/11/10 04/30/10 05/04/10 05/13/10 04/27/10 05/11/10 05/13/10 04/30/10 04/28/10 05/04/10 05/06/10 04/26/10 05/06/10 05/05/10 04/29/10 05/12/10 05/06/10 04/28/10 04/26/10
Currency
Bookrunner(s)
Sector
CNY CNY CNY CNY CNY CNY CNY CNY CNY USD CNY CNY CNY CNY CNY CNY CNY CNY CNY USD CNY CNY CNY CNY USD
Industrial & Comm Bank China; Bank Communications (Shanghai) Agricultural Bank of China; Bank of China Ltd Industrial & Comm Bank China; Bank Communications (Shanghai) Bank of China Ltd; Agricultural Bank of China Agricultural Bank of China; Industrial & Comm Bank China Industrial & Comm Bank China Chinalion Securities Co Ltd China Securities Co China Construction Bank Bank of America Merrill Lynch; Bank of China International; JP Morgan; UBS Investment Bank Shanghai Pudong Development Bk Jianyin Securities; First Capital Securities China Merchants Bank Guosheng Securities Co Ltd CITIC Securities; China Citic Bank Bank of China Ltd; Industrial & Comm Bank China China Minsheng Banking Corp China Everbright Bank China Securities Co Bank of America Merrill Lynch; Citi; UBS Investment Bank Bohai Securities Co Ltd Chinalion Securities Co Ltd China Citic Bank; China Minsheng Banking Corp China Citic Bank; CITIC Securities Standard Chartered Bank PLC
Energy and Power Energy and Power Energy and Power Government and Agencies Materials Materials Financials Industrials Real Estate Real Estate Materials Industrials Media and Entertainment Industrials Energy and Power Financials Materials Materials Consumer Products and Services Real Estate High Technology Financials Materials Industrials Financials
Deutsche Bank Securities Corp; Bank of America Merrill Lynch; RBS; ANZ Banking Group; Citi; Commerzbank AG; Credit Agricole; National Australia Bank; UBS Investment Bank Citi; HSBC Holdings PLC; JP Morgan RBS DBS Bank Ltd HSBC Holdings PLC
Consumer Products and Services Industrials Financials Financials
China CNPC PetroChina Co Ltd PetroChina Co Ltd Ministry of Railways(China) Anshan Iron & Steel Group Corp WISCO Eerduosi State-Owned Ast Mgmt Dalian Equipment Manufacturing Tianjin TEDA Group Co Ltd Renhe Commercial Holdings Co Shanxi Coking Coal Grp Co Ltd Fu Shun City Constr Invest Shanghai Oriental Pearl Co Ltd Nanchang Urban Construction Sinochem Corp Jizhong Energy Group Co Ltd Yima Coal Ind Grp Co Ltd China Nonferrous Metal Mining Beijing Tourism Group Fantasia Holdings Group Co Ltd Inner Mongolia Hi-Tech Hldg Jin Tan Constr Asset Invest Yunnan Tin Group Co Ltd COSCO Container Shipping Co BoComm-HK
HONG KONG MCE Finance Ltd
592.0
05/12/10
USD
Li & Fung Ltd Kowloon Canton Railway Corp HK Land Treasury Services Hongkong Electric Finance Ltd
399.4 102.8 72.1 60.5
05/06/10 05/07/10 05/14/10 05/03/10
USD HKD SGD HKD
www.legalbusinessonline.com
Financials
51
LONDON • HONG KONG • BEIJING • SHANGHAI • SINGAPORE • BRISBANE • MELBOURNE • PERTH • SYDNEY • AUCKLAND • WELLINGTON
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Find The Sweetest Job Without Any of the Guesswork In-house Deputy General Counsel (10+ yrs pqe) Shanghai A world leading IT company is seeking a senior lawyer who is ready to take on a General Counsel role within one year. You must have over ten years of experience in corporate, commercial and compliance matters, ideally at an IT or software company. FCPA experience is a must. Native mandarin and excellent English required. Ref: 8938/CB China Legal Counsel (6+ yrs pqe) Beijing Do you have substantial experience in the IT, telecom or a related industry? Our client, a Fortune 500 IT company, is seeking a talented lawyer to cover a wide range of legal matters. The successful candidate has a mix of corporate, commercial and litigation experience and a working knowledge of regulatory and compliance issues as they affect the IT industry. Fluent English and native Mandarin required. Ref: 8920/CB Brand Protection Manager (5+ yrs pqe) Hong Kong Help lead the anti-counterfeiting programs for a world famous fashion brand. This position liaises with local enforcement officials and is responsible for securing evidential chains. You must have at least five years of hands-on experience in IP investigation, enforcement and litigation at a multinational company, preferably in the luxury or retail industry. Must have fluent English and Mandarin; Cantonese, Italian, or French would be a plus. Ref: 8933/CB Senior Legal Manager (4-6 yrs pqe) Beijing An experienced legal manager is needed to support the activities of a well-known US conglomerate. This role covers a wide range of issues, including contracts, litigation, investigations and liaising with government bodies. Management skills and fluent Mandarin are needed to succeed. Ref: 8915/CB Legal Counsel (3+ yrs pqe) Shanghai Great opportunity with the expanding team at this Hong Kong based financial services firm. The ideal candidate is PRC qualified and has proven experience in property funds, financing, asset management and private equities. Native Mandarin and good English required. Ref: 8859/CB
Private Practice Senior Associate - M&A (7+ yrs pqe) Hong Kong This respected Australian law firm needs an experienced lawyer to handle M&A, joint ventures, outsourcing and corporate or commercial transactions. Experience in a financial institution or IT/telecommunications role is strongly desired. Mandarin language skills would be a plus. Ref: 8923/CB Senior Associate (5-8 yrs pqe) Shanghai Join the team of this international law firm and work closely with a partner overseeing the Asia region. The incumbent will cover M&A, private equities and venture capital work. US JD graduates preferred, fluent Mandarin and good English a must. Ref: 8925/CB Litigation Associate (5-7 yrs pqe) Shanghai Are you a PRC qualified lawyer with a US LLM? Our client, a well known international law firm with a strong commercial litigation practice, is seeking a senior associate to help lead its talented team. Native Mandarin and fluent English required. Ref: 8926/CB Banking and Finance Lawyer (3+ yrs pqe) Beijing Focus on lending, asset finance, project finance and derivatives at this top-tier UK law firm. The ideal candidate has PRC qualification, a law degree from a top Chinese school and relevant experience at an international or toptier Chinese law firm. Excellent academics, native Mandarin and fluent English language skills required. Ref: 8910/CB Paralegal – Hong Kong This elite UK law firm is seeking a trilingual paralegal to support a key team in its Hong Kong office. Hong Kong IPO and M&A experience with PRC qualification required. Only candidates who are fluent in Cantonese, Mandarin and English will be considered. Ref: 8928/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 BEIJING Tel: (86) 10 6581 1781 Fax: (86) 10 6581 1773 Email: beijing@hughes-castell.com.hk
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